UNIVERSITY  OF 
ILLINOIS  LIBRARY 
AT  URBANA-CHAMPAIGN 
LAW 


■ 9;  f . 

HO// 


PUBLISHED  AND  FOR  SALE  BY 


JOHN  S.  VOORHIES, 

LAW  BOOKSELLER  & PUBLISHER, 

No.  20  NASSAU,  near  Cedar  Street, 

NEW-YORK. 


Introduction  to  Legal  Science* 

1 Vol.  12mo.,  price  $1  50. 

INTRODUCTION  TO  LEGAL  SCIENCE.  An  Introduction  to  Le- 
gal Science  ; being  a concise  and  familiar  treatise  on  such  legal  topics  as 
are  earliest  read  by  the  law  student,  and  should  be  understood  by  every 
citizen  as  a part  of  a general  and  business  education;  to  winch  is  ap- 
pended a concise  dictionary  of  law  terms  and  phrases.  By  Silas  Jones, 
Esq.,  Counsellor  at  Law. 

“The  work  amply  justifies  the  title.  We  take  pleasure  in  recom- 
mending it  as  a first  book  to  the  law  student;  as  an  instructive  and 
pleasant  book  to  the  general  reader;  and  as  an  agreeable  source  of 
knowledge  to  those  of  the  fair  sex,  who  may  desire  to  know  somewhat 
of  their  legal  and  civil  relations  in  life.”—  American  Jurist  and  Law 
Magazine. 


Kent’s  Commentaries  Abridged. 

1 Vol.  8vo.,  price  $3  00. 

KENT’S  COMMENTARIES  ABRIDGED.  An  Analytical  Abridg- 
ment of  Kent’s  Commentaries  on  American  Law.  With  Questions  for 
Examination.  By  J.  Eastman  Johnson. 

I have  read  the  Analytical  Abridgment  of  Kent’s  Commentaries,  re- 
cently compiled  by  J.  Eastman  Johnson,  Esq.,  and  take  pleasure  in  say- 
ing that  the  work  appears  to  me  to  have  been  executed  with  much 
judgment  and  accuracy.  If  properly  used  by  the  student, — that  is  to 
say — not  as  a substitute  for  the  original  work,  but  as  a means  of  assist- 
ing him  in  understanding, digesting,  and  recollecting  its  contents, — it  can 
scarcely  fail  to  be  a useful  Appendix  to  the  Commentaries. 

B.  F.  BUTLER. 

Edwards’  Juryman’s  Cfuide* 

1 Vol.  8vo.,  price  $2  00. 

EDWARDS’  JURYMAN’S  GUIDE.  The  Juryman’s  Guide,  contain- 
ing general  matter  for  the  lawyer  and  law  Officer.  By  Charles  Edwards, 


THE  LAW 


OF 

EXECUTORS  AND  ADMINISTRATORS. 


EXHIBITING  THEIR  RIGHTS,  DUTIES 
AND  LIABILITIES, 

TOGETHER  WITH 

FULL  DIRECTIONS  FOR  PROCEEDING  BOTH  IN  PROVING 
A WILL  AND  ADMINISTERING  AN  ESTATE  ; AS 
WELL  AS  FOR  THE  DISTRIBUTION  OF  THE 
EFFECTS,  AND  THE  FINAL  SETTLE- 
MENT OF  ACCOUNTS. 

WITH  ALL  NECESSARY  PRACTICAL  FORMS.  THE  WHOLE 
FORMING  A WORK  OF  GENERAL  UTILITY,  BUT  MORE 
PARTICULARLY  ADAPTED  TO  THE 

PRACTICE  AND  LAWS 

OF  THE 

STATE  OF  NEW-YORK. 


By  JOHN  N.  TAYLOR, 

Counsellor  at  Law. 


NEW-YORK : 

JOHN  S.  VOORHIES,  20  NASSAU-STREET. 


1851 


Entered  according  to  Act  of  Congress,  in  the  year  1851,  by 
JOHN  S.  VOORHIES, 

In  the  Clerk’s  Office  of  the  District  Court  of  the  Southern  District  of 
New-York. 


BAKER,  GODWIN  n CO.,  PRINTERS, 
TRIBUNE  BUILDINGS. 


KFf/ 

5~»!0 


T2> 


PREFACE. 


This  work  has  been  prepared  for,  and  at  the  re- 
quest of  Mr.  Voorhies,  the  publisher,  in  consequence 
of  repeated  calls  upon  him,  for  a plain  practical  com- 
pend  of  the  Law  of  Executors  and  Administrators. 
How  far  this  object  has  been  accomplished,  the  judg- 
ment of  every  reader  will  determine  for  himself. 
It  is  intended  to  furnish  full  directions  and  instruc- 
tions, for  an  intelligent  discharge  of  the  duties  of 
either  office,  by  any  person  about  to  undertake,  the 
settlement  of  the  estate  of  a deceased  friend  or  rela- 
tive ; from  the  time  of  his  applying  for  letters  of 
administration  or  of  probate,  until  the  final  settle- 
ment of  the  estate.  It  is  designed  to  instruct  one 
who  has  neither  a law  library  at  command,  nor  time 
and  opportunity  to  consult  counsel,  in  respect  to  many 
of  those  ever  varying  questions,  which  arise  in  the 
administration  of  estates ; and  with  common  pru- 
dence, will  be  found  sufficient  to  enable  him  to  avoid 
mistakes,  as  well  as  to  shield  himself  from  personal 
liability.  Should  such  an  individual,  however,  find 


VI 


PREFACE. 


himself  in  a difficult  position,  or  obliged  to  prosecute 
or  defend  an  action,  in  his  character  of  executor  or 
administrator,  he  ought  not  to  act  beyond  what  is 
here  written,  without  consulting  his  professional  ad- 
viser. The  following  pages  will  show  him,  all  that 
is  necessary  to  be  done  when  not  so  embarrassed, 
and  in  the  concluding  chapter  he  will  find,  all  the 
practical  forms,  which  are  necessary  to  be  filled  up 
and  presented  by  him  at  the  Surrogate’s  office,  in 
the  discharge  of  all  the  ordinary  duties  of  his  ad- 
ministration. 


New-York,  January,  1851. 


CONTENTS 


PAGE 

CHAPTER  I. — Of  Administrators, 9 

CHAPTER  II. — Of  Executors, 30 

CHAPTER  III. — Of  making  an  inventory  and  col- 
lecting the  assets, 57 

CHAPTER  IV. — Of  paying  debts  and  legacies,  and. 

distributing  the  surplus, 72 

CHAPTER  V. — Of  rendering  an  account,  and  being 

discharged, 106 


CHAPTER  VI. — Of  proceedings  to  sell  real  estate,  121 

CHAPTER  VII. — Of  guardians  appointed  by  the 

Surrogate, 128 

CHAPTER  VIII. — Practical  forms  and  directions,  139 


The  following  Errata  have  been  observed. 

Page  30,  §46,  line  4,  after  the  words  “ New-York,”  insert,  “as  we 
shall  presently  see,  specify  the  several  classes  of  persons  who  are  in- 
competent for  this  purpose.  They  also.’' 

Page  91,  § 180,  line  5,  strike  out  the  word  “preserve’’  and  insert 
“ procure.” 


THE  LAW 


OF 

EXECUTORS  AND  ADMINISTRATORS, 


CHAPTER  I. 

OF  ADMINISTRATORS. 

§ 1.  In  the  early  periods  of  English  history, 
when  a man  died  without  making  a will,  it  was  pre- 
sumed that  he  acknowledged  no  one  as  the  rightful 
heir  of  his  property,  and  the  sovereign  therefore,  as 
jparens  patrice,  or  general  head,  took  possession  of 
his  effects.  The  hardship  of  such  a deprivation  to 
the  legitimate  descendants  and  relatives  could  not, 
of  course,  but  be  severely  felt ; and  when,  as  men 
came  out  of  that  state  of  servitude  and  non-exist- 
ence as  regarded  their  rights,  which  had  been  im- 
posed by  the  feudal  customs  of  William  the  Con- 
queror, they  began  to  acquire  a superfluity  beyond 
the  means  necessary  for  their  present  subsistence, 
they  looked  with  the  more  distaste  upon  this  unjust 
abstraction  of  their  property,  and  doubtless  loudly 


10 


THE  LAW  OF 


exclaimed  against  it.  In  the  framing  of  Magna 
Charta,  therefore,  this  matter  was  cared  for,  and  the 
subject  obtained,  by  its  signature,  the  concession  that, 
if  a freeman  should  die  intestate,  his  chattels  should 
be  distributed  by  the  hands  of  his  near  relations  and 
friends,  under  the  inspection  of  the  church. 

§ 2.  Upon  this  provision  for  the  fair  apportion- 
ment of  the  goods  of  a deceased  person  amongst 
those  who  had  the  best  right  to  enjoy  them,  the 
priesthood  of  the  Romish  Church,  with  a craft  that 
peculiarly  distinguished  the  churchmen  of  the  pe- 
riod, claimed  the  privilege  of  administering  the  goods 
of  an  intestate  with  their  own  hands.  In  the  course 
of  time,  consequently,  the  power  of  seizing  the 
property  of  such  persons  was  exercised  by  the 
bishops  instead  of  the  crown.  The  whole  of  the 
chattels  were,  in  the  first  instance,  placed  in  the  cus- 
tody of  the  bishop  of  the  diocese  in  which  the  per- 
son died,  or  in  that  of  his  deputy,  and,  after  the  de- 
duction of  the  partes  rationabiles,  as  they  were 
termed,  or  one-third  for  the  widow,  and  another 
third  for  the  children  of  the  deceased,  the  remaining 
third  was  retained  for  the  payment  of  his  debts,  and 
for  pious  uses,  masses,  charities,  and  other  purposes 
of  the  like  kind,  for  the  benefit  of  his  soul. 

§ 3.  The  temptation,  however;  was  too  great,  and 
instead  of  thus  applying  the  residue  of  the  goods 
of  the  departed,  the  ordinary  or  bishop  almost  in- 


EXECUTORS  AND  ADMINISTRATORS. 


11 


variably  used  them  for  his  own  benefit,  or  for  that 
of  his  order ; and  even  unscrupulously  refused  to 
pay  the  just  debts  of  him  who  was  no  longer  able 
to  satisfy  them  himself.  To  remedy  these  abuses 
the  legislature  was  obliged  to  interfere,  and  take 
the  power  of  administration  entirely  from  the 
church,  and  confer  it  upon  those  who  were  more 
disposed  to  a faithful  execution  of  the  trust.  This 
produced  those  English  Statutes  from  which  we 
have  copied  the  law  of  granting  administration  in 
this  country.  The  power  of  granting  such  adminis- 
tration, however,  was  left  by  those  statutes  and  still 
remains  in  the  hands  of  the  bishop,  or  ordinary,  as 
he  was  termed. 

§ 4.  By  our  American  law,  this  duty  is  assigned 
to  the  courts  and  magistrates  of  civil  jurisdiction. 
In  some  of  the  states,  the  probate  of  wills  and  the 
administration  of  the  estates  of  testators  and  intes- 
tates is  vested  in  the  county  courts.  In  others  it  is 
confided  to  courts  of  special  jurisdiction,  under  the 
various  names  of  the  Court  of  Probates,  the  Regis- 
ters’ Court,  the  Orphans’  Court,  the  Court  of  the  Or- 
dinary, and  the  Surrogate’s  Court.  The  Revised 
Statutes  of  each  State,  particularly  the  more  recent 
revisions,  contain  a particular  detail  of  the  jurisdic- 
tion, powers  and  practice  of  Probate  Courts ; but 
we  shall  particularize  only  those  of  the  state  of 
New- York. 


12 


THE  LAW  OF 


§ 5.  Before  the  Revolution,  the  power  of  grant- 
ing letters  testamentary  and  of  admistration  resided 
in  the  governor  of  that  state,  as  judge  of  the  Pre- 
rogative Court.  It  was  afterwards  vested  in  a 
Court  of  Probates,  consisting  of  a single  judge,  and 
so  continued  until  1787,  when  Surrogates  were 
authorized  to  grant  such  letters  as  to  the  estates  of 
persons  dying  within  their  respective  counties.  If 
the  person  died  out  of  the  state,  or,  within  the  state, 
not  being  an  inhabitant  thereof,  the  granting  of  the 
administration  was  still  reserved  to  the  Court  of 
Probates. 

§ 6.  This  practice  continued  until  1822,  when 
the  Court  of  Probates  was  abolished,  and  all  the 
original  powers  of  that  court  transferred  to  the  Sur- 
rogates ; each  Surrogate  had  jurisdiction  exclusive 
of  every  other  Surrogate,  within  his  county,  when 
the  testator  or  intestate,  was  at  his  death  an  inhabi- 
tant of  the  county,  in  whatever  place  he  may  have 
died;  or  not  being  an  inhabitant  of  the  state,  died  in 
the  county,  leaving  assets  therein,  or,  not  being  an 
inhabitant  of  the  state,  died  abroad,  having  assets  in 
the  county  of  the  Surrogate  ; or,  not  being  an  inhab- 
itant of  the  state,  and  dying  out  of  it,  assets  of  such 
testator  or  intestate  should  thereafter  come  into  the 
county  ; or,  where  no  jurisdiction  is  gained  in  either 
of  the  above  cases,  and  real  estate  devised  by  the 
testator  is  situated  in  the  county,  By  the  Revised 


EXECUTORS  AND  ADMINISTRATORS. 


13 


Statutes  of  New-York,  whenever  an  intestate,  not 
being  an  inhabitant  of  this  State,  shall  die  out  of 
the  State,  leaving  assets  in  several  counties,  or  as- 
sets of  such  intestate  shall,  after  his  death,  come 
into  several  counties,  the  Surrogate  of  any  county  in 
which  such  assets  shall  be,  has  power  to  grant  let- 
ters of  administration  on  the  estate  of  such  intestate  t 
but  the  Surrogate  who  shall  first  grant  letters  of  ad- 
ministration on  such  estate,  shall  be  deemed  thereby 
to  have  acquired  sole  and  exclusive  jurisdiction  over 
such  estate,  and  shall  be  vested  with  all  the  powers 
incidental  thereto. 

§ 7.  The  office  of  Surrogate  was  abolished  by  the 
Constitution  of  this  State  in  1846,  and  his  duties 
were  directed  to  be  performed  by  the  county 
judges,  except  in  such  cases  as  the  legislature  should 
provide  for  the  election  of  a local  officer  to  discharge 
the  duties  of  a Surrogate.  The  jurisdiction  of  this 
officer,  however,  was  not  changed  in  other  respects, 
and  now  remains  as  it  was  in  1823.  There  is,  like- 
wise, a public  administrator  in  the  city  of  New-York, 
who  is  authorized  to  act  in  cases  where  there  are 
effects  in  the  City  of  persons  dying  in  the  State, 
and  leaving  no  widow  or  next-of-kin  competent  and 
willing  to  administer,  the  County  Treasurer  in  each 
county  acts  as  public  administrator  in  the  like  cases. 

§ 8.  Administration  is  generally  directed  to  issue 
to  the  nearest  relative  of  the  deceased,  who  is  not 
2* 


14 


THE  LAW  OF 


under  some  legal  disability.  If  none  of  the  kindred 
are  willing  to  act,  a creditor  may  be  appointed  to 
distribute  the  goods  for  the  benefit  of  himself  and 
such  others  as  ought  to  obtain  the  proceeds,  Where 
there  is  no  one  entitled  to  take  out  letters  of  admin- 
istration, the  ordinary  may  appoint  whomsoever  he 
pleases  to  collect  the  property,  and  pay  it  over  to 
those  who  have  obtained,  by  the  death  of  the  testa- 
tor, a legal  right  to  them.  Administrators  may  be 
also  nominated  where  a will  has  been  made  and  no 
executors  appointed,  or  where  executors  have  been 
appointed,  and  have  refused  to  act,  or  are  legally 
disqualified.  The  usual  custom,  when  an  executor 
refuses  to  act,  is  to  appoint  administration  through 
the  residuary  legatee — the  party  to  whom  the  re- 
mainder of  the  property  is  bequeathed  after  payment 
of  all  the  legacies  and  other  legal  liabilities  of  the 
property  of  the  deceased. 

§ 9.  There  is  generally  but  little  trouble  in  ascer- 
taining who  is  entitled  in  the  first  instance  to  admin- 
ister upon  the  effects  of  a deceased  intestate,  but  when 
the  matter  becomes  complicated  by  the  death,  ab- 
sence, or  subsequent  incapacity  of  the  person  who 
has  taken  out  administration,  and  partly  fulfilled  the 
intents  of  his  office,  confusion  often  arises,  and  much 
loss  is  incurred.  At  the  least,  bitter  animosities  oc- 
casionally prevail,  and  that  which  should  have  proved 
a blessing  becomes  a curse,  and  strifes  are  engendered, 


EXECUTORS  AND  ADMINISTRATORS. 


15 


which  only  terminate  with  the  lives  of  the  individuals 
who  suffer  from  them ; we  will,  therefore,  endeavor 
to  lay  down,  as  far  as  the  authorities  will  enable  us, 
and  as  clearly  as  we  can,  the  rules  which  guide  the 
precedence  of  parties  entitled  to  administer  the  in- 
testate’s effects  under  such  circumstances. 

§ 10.  We  will  premise,  however,  that  when  two 
persons  obtain  power  to  administer,  an&  one  of  them 
dies,  the  survivor  becomes  sole  administrator,  as  is 
the  case  in  an  executorship.  But  where  there  is 
only  one  administrator,  and  he  dies  before  the  full 
execution  of  his  trust,  it  reverts  to  the  surrogate ; 
for  the  administrator  is  merely  the  officer  and  dele- 
gate of  the  surrogate ; one  in  whom  the  deceased 
reposed  no  trust,  and  who,  therefore,  cannot  hand 
down  any  powers,  and  those  which  he  had  conse- 
quently return  to  him  who  gave  them.  Nor  can 
these  powers  be  derived  through  any  party  but  the 
surrogate  ; for,  if  an  individual  die,  leaving  a will,  in 
which  he  has  appointed  an  executor,  and  that  ex- 
ecutor subsequently  die  intestate,  the  administrator 
of  the  executor  takes  no  power  to  interfere  in  the 
estate  of  the  party  for  whom  his  intestate  was  ex- 
ecutor, but  that  estate  must  obtain  a new  executor 
in  the  person  of  an  administrator  appointed  by  the 
surrogate,  like  every  other  vacant  estate. 

§ 11.  Administration  will  be  granted  to  the  rela- 
tives of  the  deceased,  who  would  be  entitled  to  sue- 


16 


THE  LAW  OF 


ceed  to  his  personal  estate,  if  they,  or  any  of  them, 
will  accept  the  same,  in  the  following  order : 

1.  to  the  widow;  2.  to  the  children;  3.  to  the 
father;  4.  to  the  brothers;  5.  to  the  sisters;  6.  to 
the  grandchildren ; 7.  to  any  other  of  the  next-of- 
kin  who  would  be  entitled  to  share  in  the  distribution 
of  the  estate.  If  any  of  the  persons  so  entitled  be 
minors,  administration  will  be  granted  to  their  guar- 
dians ; if  none  of  the  said  relatives  or  guardians  will 
accept  the  same,  then  to  the  creditors  of  the  de- 
ceased ; and  the  creditor  first  applying,  if  otherwise 
competent,  will  be  entitled  to  a preference. 

If  no  creditor  apply,  then  to  any  other  person  or 
persons  legally  competent : but  in  the  city  of  New- 
York,  the  public  administrator  will  have  preference, 
after  the  next-of-kin,  over  creditors  and  all  other 
persons ; and  in  the  other  counties  of  this  State,  the 
County  Treasurer  will  have  preference  next  after 
creditors,  over  all  other  persons.  And  in  the  case 
of  a married  woman  dying  intestate,  her  husband 
will  be  entitled  to  administration,  in  preference  to 
any  other  person. 

§ 12.  When  there  are  several  persons  of  the  same 
degree  of  kindred  to  the  intestate,  entitled  to  admin- 
istration, they  shall  be  preferred  in  the  following 
order : First,  Males  to  females : Second , Relatives 
of  the  whole  blood  to  those  of  the  half  blood  t 
Third,  Unmarried  women  to  such  as  are  married : 


EXECUTORS  AND  ADMINISTRATORS. 


17 


and  when  there  are  several  persons  equally  entitled 
to  administration,  the  Surrogate  may,  in  his  discre- 
tion, grant  letters  to  one  or  more  of  such  persons. 

§ 13.  Administration  is  usually  granted  to  the 
widow  when  there  is  no  sufficient  reason  for  acting 
otherwise ; but,  as  this  is  sometimes  the  case,  and  as 
the  Surrogate  has  power  to  grant  it  either  to  the 
widow  or  next-of-kin,  or  both,  he  will  exclude  the 
widow  whenever  either  she  is  incompetent,  as  from 
lunacy,  negligence,  or  abandoned  character,  or  where 
there  is  another  person  more  eligible  for  the  duty,  as 
where  any  near  relative  is  left  guardian  to  the 
younger  children.  Should  the  widow  renounce  the 
administration,  the  rule  is  to  grant  it  to  the  children 
or  other  next-of-kin  in  preference  to  creditors. 

§ 14.  The  court  always  prefers  that  person  who  is 
most  eligible ; and,  where  the  option  was  between 
two  persons  in  equal  degree  of  relationship,  and  one 
of  them  had  been  twice  a bankrupt,  the  court  re- 
jected him  and  took  the  other.  Where,  however, 
there  is  no  material  objection,  and  no  particular 
reasons  for  preference,  the  court  will  put  the  admin- 
istration into  the  hands  of  him  to  whom  the  majority 
of  persons  interested  are  desirous  of  intrusting  the 
estate.  But  degree  of  relationship  is  a primary  mo- 
tive of  selection  on  the  part  of  the  court,  and  a pri- 
mary title,  other  things  being  equal,  on  the  part  of 
the  applicant  for  letters  of  administration. 


18 


THE  LAW  OF 


§ 15.  A husband,  as  such,  if  otherwise  competent 
according  to  law,  will  be  entitled  to  administration 
on  the  estate  of  his  wife,  and  must  give  bonds  as 
other  persons ; but  shall  be  liable  as  administrator 
for  the  debts  of  his  wife,  only  to  the  extent  of  the 
assets  received  by  him.  If  he  do  not  take  out  letters 
of  administration  on  her  estate,  he  shall  be  presumed 
to  have  assets  in  his  hands  sufficient  to  satisfy  her 
debts,  and  shall  be  liable  therefor.  And  if  he  shall 
die  leaving  any  assets  of  his  wife  unadministered, 
they  will  pass  to  his  executors  or  administrators,  as 
part  of  his  personal  estate,  but  shall  be  liable  for  her 
debts  to  her  creditors,  in  preference  to  the  creditors 
of  the  husband.  If  letters  of  administration  on  the 
estate  of  a married  woman  be  granted  to  any  other 
person  than  her  husband,  by  reason  of  his  neglect, 
refusal  or  incompetency  to  take  the  same,  such  ad- 
ministrator shall  account  for,  and  pay  over,  the  assets 
remaining  in  his  hands,  after  the  payment  of  debts, 
to  such  husband  or  his  personal  representatives. 

§ 16.  In  all  cases  where  persons  not  inhabitants 
of  this  State  shall  die  leaving  assets  in  this  State,  if 
no  application  for  letters  of  administration  be  made 
by  a relative  entitled  thereto,  and  legally  competent, 
and  it  shall  appear  that  letters  of  administration  on 
the  same  estate,  or  letters  testamentary,  have  been 
granted  by  competent  authority,  in  any  other  state 
of  the  United  States,  then  the  person  so  appointed. 


EXECUTORS  AND  ADMINISTRATORS. 


19 


on  producing  such  letters,  shall  be  entitled  to  letters 
of  administration  in  preference  to  creditors,  or  any 
other  persons,  except  the  public  administrator  in  the 
city  of  New- York. 

§ 17.  If  any  person  who  would  otherwise  be  en- 
titled to  letters  of  administration  as  next  of  kin,  or  to 
letters  of  administration  with  the  will  annexed,  as 
residuary  or  specific  legatee,  shall  be  a minor,  such 
letters  shall  be  granted  to  his  guardian,  being  in  all 
respects  competent,  in  preference  to  creditors  or 
other  persons. 

§ 18.  Administration  may  be  granted  to  one  or 
more  competent  persons,  although  not  entitled  to 
the  same,  with  the  consent  of  the  person  entitled,  to 
be  joined  with  such  person : which  consent  shall  be 
in  writing,  and  be  filed  in  the  office  of  the  Surrogate. 
In  case  no  such  consent  can  be  procured,  application 
must  be  made  to  the  Surrogate,  in  the  first  instance 
for  a citation  to  all  those  having  a preference,  to 
show  cause,  at  a day  to  be  therein  specified,  why 
administration  should  not  be  granted  to  such  appli- 
cant. 

§ 19.  Letters  of  administration  will  not  be  granted 
to  a person  convicted  of  an  infamous  crime,  nor  to 
any  one  incapable  by  law  of  making  a contract ; nor 
to  a person  not  a citizen  of  the  United  States,  unless 
such  person  reside  within  this  State  ; nor  to  any  one 
who  is  under  twenty-one  years  of  age ; nor  to  any 


20 


THE  LAW  OF 


person  who  shall  be  judged  incompetent  by  the 
Surrogate,  to  execute  the  duties  of  such  trust,  by 
reason  of  drunkenness,  improvidence,  or  want  of  un- 
derstanding ; nor  to  any  married  woman.  But  where 
a married  woman  is  entitled  to  administration,  it  may 
be  granted  to  her  husband  in  her  right  and  behalf ; 
and  if  it  appears  that  her  husband  has  become  inca- 
pacitated by  some  mental,  physical  or  legal  disability, 
and  that  she  has  thus  acquired  the  right  of  acting 
alone,  a stranger  may  join  in  security  with  her,  and 
she  may  proceed  in  the  administration  as  if  she  were 
unmarried.  If  she  be  the  only  next  of  kin,  and  a 
minor,  and  her  husband  not  thus  incapacitated,  she 
may  elect  him  to  be  her  guardian,  during  her  mi- 
nority, to  take  the  administration  for  her  use  and 
benefit,  but,  on  her  attaining  majority,  the  grant 
ceases  to  be  operative,  and  a new  power  may  be 
committed  to  her. 

§ 20.  The  term  “infamous  crime,”  as  used  in  the 
statute,  includes  every  offence  punishable  with  death 
or  by  imprisonment  in  a state  prison,  and  no  other. 

§ 21.  Letters  of  administration  may  be  granted 
at  any  time  after  the  death  of  the  intestate.  Proof 
must  be  made  to  the  Surrogate  of  the  death  of  the 
intestate,  and  that  he  left  no  will ; and  the  Surrogate 
is  required  to  examine  the  person  applying  for  letters 
of  administration,  on  oath,  touching  the  time,  place, 
and  manner  of  the  death,  and  whether  or  not  the 


EXECUTORS  AND  ADMINISTRATORS. 


21 


party  dying  left  a will ; and  he  may  also  in  like 
manner  examine  any  other  person,  and  may  compel 
such  person  to  attend  as  a witness  for  such  purpose. 

§ 22.  Every  person  appointed  administrator  must, 
before  receiving  letters,  execute  a bond  to  the 
people  of  this  State,  with  two  or  more  competent 
sureties,  to  be  approved  by  the  Surrogate,  and  to 
be  jointly  and  severally  bound.  The  penalty  in 
such  bond  will  not  be  less  than  twice  the  value  of 
the  personal  estate  of  which  the  deceased  died  pos- 
sessed ; which  value  is  to  be  ascertained  by  the 
Surrogate,  by  the  examination  on  oath  of  the  party 
applying,  and  of  every  other  person  he  may  think 
proper  to  examine.  The  bond  will  be  conditioned, . 
that  such  administrator  shall  faithfully  execute  the 
trust  reposed  in  him  as  such,  and  also  that  he  shall 
obey  all  orders  of  such  Surrogate,  touching  the  ad- 
ministration of  the  estate  committed  to  him. 

§ 23.  Provision  is  also  made  by  the  statute  for  re- 
newing this  security  in  case  it  should  at  any  time  be- 
come insufficient ; for,  if  any  person  interested  in  the 
estate  of  the  deceased,  shall  discover  that  the  sureties 
are  becoming  insolvent ; or  have  removed,  or  are 
about  to  remove  from  this  State,  or  that  from  any 
other  cause  they  are  insufficient,  he  may  apply  to  the 
Surrogate  who  granted  the  letters  of  administration 
for  relief. 

§ 24.  If  the  Surrogate  is  satisfied  that  the  matter 
3 


22 


THE  LAW  OF 


requires  investigation,  he  shall  issue  a citation  to  the 
administrator,  to  appear  before  him  to  show  cause 
why  he  should  not  give  further  sureties,  or  be  su- 
perseded in  the  administration  : which  citation  shall 
be  served  personally  on  the  administrator,  at  least 
six  days  before  the  return  day  thereof ; or  if  he 
shall  have  absconded,  or  cannot  be  found,  it  may  be 
served  by  leaving  a copy  at  his  last  place  of  resi- 
dence. 

§ 25.  On  the  return  of  the  citation,  or  at  such 
other  time  as  the  Surrogate  shall  appoint,  he  will 
proceed  to  hear  the  proofs  and  allegations  of  the 
parties  ; and  if  it  shall  satisfactorily  appear  that  the 
sureties  are  for  any  cause  insufficient,  the  Surrogate 
may  make  any  order  requiring  such  administrator 
to  give  further  sureties  in  the  usual  form,  within  a 
reasonable  time,  not  exceeding  five  days. 

§ 26.  If  the  administrator  neglect  to  give  further 
sureties  to  the  satisfaction  of  the  Surrogate,  within 
the  time  prescribed,  the  Surrogate  will  by  order  re- 
voke the  letters  of  administration  issued  to  such  ad- 
ministrator, whose  authority  and  rights  as  an  ad- 
ministrator shall  thereupon  cease. 

§ 27.  When  either  or  all  of  the  sureties  of  any 
administrator  shall  desire  to  be  released  from  re- 
sponsibility, on  account  of  the  future  acts  or  de- 
faults of  such  administrator,  they  may  make  appli- 
tion  to  the  Surrogate  who  granted  letters  of  admin- 
stration,  for  relief. 


EXECUTORS  AND  ADMINISTRATORS. 


23 


§ 28.  The  Surrogate  will  thereupon  issue  a cita- 
tion to  such  administrator,  requiring  him  to  appear 
before  such  Surrogate,  at  a time  and  place  to  be 
therein  specified,  and  give  new  sureties,  in  the  usual 
form,  for  the  faithful  discharge  of  his  duties. 

§ 29.  If  the  administrator  gives  new  sureties  to 
the  satisfaction  of  the  Surrogate,  the  Surrogate  may- 
make  an  order  that  the  surety  or  sureties  who  ap- 
plied for  relief  shall  not  be  liable  on  their  bond  for 
any  subsequent  act,  default  or  misconduct  of  the  ad- 
ministrator. 

§ 30.  But  if  the  administrator  neglects  to  give 
new  sureties  to  the  satisfaction  of  the  Surrogate,  on 
the  return  of  the  citation,  or  within  such  reasonable 
time  as  the  Surrogate  shall  allow,  not  exceeding  five 
days,  the  Surrogate  will  revoke  the  letters  of  admin- 
istration issued  to  such  administrator,  whose  author- 
ity and  rights  as  an  administrator  shall  thereupon 
cease. 

31.  In  all  cases  in  which  letters  of  administration 
shall  have  been  granted  to  more  than  one  person, 
and  the  Surrogate  granting  them  shall  have  revoked 
the  same,  as  to  part  only  of  such  administrators, 
the  person  or  persons  whose  letters  have  not  been 
revoked,  shall  have  the  further  administration  of  the 
respective  estates  subsequent  to  such  revocation : 
any  suit  brought  previous  to  such  revocation,  may 
be  continued  the  same  as  if  no  such  revocation  had 


24 


THE  LAW  OF 


taken  place.  In  all  other  cases  of  revocation  the 
Surrogate  shall  grant  administration  of  the  goods, 
chattels  and  credits,  not  administered,  in  the  manner 
prescribed  by  law. 

§ 32.  The  Surrogate  is  also  authorized  to  make 
an  order  requiring  an  administrator,  executor  or 
guardian  to  give  additional  security,  whenever  it 
shall  appear  that  the  penalty  of  the  bond  taken  from 
such  executor,  administrator  or  guardian,  is  inade- 
quate in  amount.  And  in  case  of  non-compliance 
with  such  order,  the  Surrogate  may  revoke  the  let- 
ters granted  by  him  to  such  executor,  administrator 
or  guardian. 

§ 33.  The  Revised  Statutes  further  provide,  that 
whenever  an  executor  or  administrator  shall  refuse 
or  omit  to  perform  any  decree  made  against  him  by 
a Surrogate  having  jurisdiction,  for  rendering  an 
account,  or  upon  a final  settlement,  or  for  the  pay- 
ment of  a debt,  legacy,  or  distributive  share,  such 
Surrogate  may  cause  the  bond  of  such  executor  or 
administrator  to  be  prosecuted,  and  shall  apply  the 
moneys  collected  thereon  in  satisfaction  of  such  de- 
cree, in  the  same  manner  as  the  same  ought  to  have 
been  applied  by  such  executor  or  administrator. 

§ 34.  In  the  event  of  there  being,  as  is  some- 
times the  case,  no  fit  and  proper  person  to  administer 
to  the  goods  of  the  intestate,  the  Surrogate  has 
power  to  grant  letters  to  some  one  to  collect  the 


EXECUTORS  AND  ADMINISTRATORS. 


25 


goods  of  the  deceased,  and  thus  assume  the  office 
of  executor  or  administrator  himself.  So  in  case 
of  a contest  relative  to  the  proof  of  a will,  or 
to  granting  letters  testamentary,  or  of  administra- 
tion, with  the  will  annexed,  or  of  administration  in 
case  of  intestacy,  or  when  by  reason  of  absence  from 
this  State  of  any  executor  named  in  a will,  or  for 
any  other  cause  a delay  is  necessarily  produced  in 
granting  letters,  the  Surrogate  authorized  to  grant 
the  same,  may,  in  his  discretion,  issue  special  letters 
of  administration,  authorizing  the  preservation  and 
collection  of  the  goods  of  the  deceased.  Every 
collector  so  appointed  has  authority  to  collect  the 
goods,  chattels,  personal  estate  and  debts  of  the  de- 
ceased, and  to  secure  the  same  at  such  reasonable 
expense  as  the  Surrogate  shall  allow,  and  for  these 
purposes  he  may  maintain  suits  as  administrator. 
Under  the  direction  of  the  Surrogate  he  may  sell 
such  of  the  goods  of  the  deceased  as  shall  be  deem- 
ed necessary  for  the  preservation  and  benefit  of  the 
estate,  after  the  same  shall  have  been  appraised. 

§ 35.  Upon  letters  testamentary,  or  of  adminis- 
tration being  granted,  the  power  and  authority  of 
such  collector  will  cease  ; but  any  suit  brought  by 
him  may  be  continued  by  the  executor  or  adminis- 
trator, in  the  name  of  such  collector,  which  he  shall 
not  have  power  to  discontinue  or  release.  And 
3* 


26 


THE  LAW  OF 


such  collector  must,  on  demand,  deliver  to  the  ex- 
ecutor or  administrator  all  the  property  and  money 
of  the  deceased  in  his  hands,  and  render  an  account 
on  oath  to  the  Surrogate,  of  all  his  proceedings,  up- 
on being  cited  for  that  purpose,  or  without  such 
citation.  The  delivery  and  account  may  be  enforced 
by  an  order  of  the  Surrogate,  and  by  attachment, 
to  be  issued  by  him,  as  in  other  cases  of  administra- 
tors. 

§ 36.  An  administration  becomes  void  on  the  pre- 
sentation and  proof  of  a will  which  has  been  found, 
and  subsequently  proved  by  the  executor,  upon 
whatever  cause  it  may  happen  not  to  have  been 
produced  at  an  earlier  period,  whether  it  were  du- 
bious or  undiscovered,  or  whether  the  executor 
were  abroad  or  concealed  at  the  time  of  granting 
the  administration;  or  whether  there  be  a will 
found  with  executors  named,  and  they  die,  or  one 
dies,  and  the  other  refuses  to  act,  provided  admin- 
istration be  granted  before  that  refusal  is  expressed, 
although  he  should  afterwards  actually  refuse. 

§ 37.  Administration  also  becomes  voidable,  that 
is,  liable  to  be  revoked,  when  granted  to  another 
party  on  account  of  the  incapacity  of  the  next-of- 
kin,  and  that  incapacity  is  removed  ; or  if  the 
party  to  whom  it  has  been  granted  become  de- 
ranged, or  otherwise  incapable  ; or  if  it  be  granted 


EXECUTORS  AND  ADMINISTRATORS. 


27 


to  a creditor  before  the  renunciation  of  the  next-of- 
kin.  In  all  these  cases  administration  is  voidable, 
and  may  be  repealed  at  the  discretion  of  the  court. 

§ 38.  If  at  any  time  it  shall  be  made  to  appear 
to  the  Surrogate  that  letters  of  administration  have 
been  granted  on,  or  by  reason  of,  false  representa- 
tions made  by  the  person  to  whom  they  were  grant- 
ed, or  that  the,  administrator  has  become  incompe- 
tent hy  law  to  act  as  such,  in  consequence  of  drunk- 
enness, improvidence  or  want  of  understanding,  the 
Surrogate  must  revoke  such  letters.  So  if  a woman 
marries  after  being  appointed  administratrix,  he  may 
revoke  the  appointment  on  the  application  of  any 
person  interested. 

§ 39.  It  is  the  established  doctrine,  however, 
that  all  sales  of  property  made  in  good  faith,  and 
all  lawful  acts  done  either  by  administrators  be- 
fore notice  of  a will,  or  by  executors  or  administra- 
tors who  may  be  removed  or  superseded,  or  become 
incapable,  shall  remain  valid,  and  not  be  impeached 
on  any  will  appearing,  or  by  any  subsequent  revo- 
cation or  superseding  of  the  authority  of  such  exec- 
utors or  administrators. 

§ 40.  Should  an  executor  appear  after  administra- 
tion granted,  and  the  administrator  shall  have  paid 
legacies  or  other  moneys,  he  is  entitled  to  deduct  the 
sum  from  any  damages  which  may  be  recovered 
against  him  by  the  executors.  If  a creditor  obtain 


28 


THE  LAW  OF 


administration  he  has  a right  to  maintain  it  against 
all  the  world,  without  suit  against  him ; and  has 
liberty  to  show  cause  why  it  should  not  be  revoked  ; 
but,  if  a creditor  obtain  administration,  pays  his  debt, 
and  then  goes  away,  a new  administration  is  to  be 
granted. 

§ 41.  The  Surrogate  has  full  power  to  restrain  the 
administrator  from  acting  in  the  administration, 
during  the  pendency  of  proceedings  to  revoke  the 
letters  of  administration.  In  case  one  of  several  ad- 
ministrators shall  die,  become  lunatic,  convict  of  an 
infamous  offence,  or  otherwise  become  incapable  of 
executing  the  trust  reposed  in  him ; or  in  case  the 
letters  of  administration  shall  be  revoked  or  annulled 
in  respect  to  any  one  administrator,  then  the  remain- 
ing administrators  shall  proceed  and  complete  the 
administration. 

§ 42.  There  is  another  species  of  administration 
which  may  be  mentioned  here,  namely,  that  of  an 
administration  with  the  will  annexed.  If  all  the 
persons  named  in  a will  as  executors,  renounce,  or 
neglect  to  qualify,  or  shall  be  legally  incompetent, 
then  letters  testamentary  will  be  issued,  and  admin- 
istration with  the  will  annexed  granted,  as  if  no  ex- 
ecutors were  named  in  the  will,  to  the  residuary 
legatees,  or  some,  or  one  of  them,  if  there  be  any ; 
if  there  be  none  that  will  accept,  then  to  any  princi- 
pal or  specific  legatee,  if  there  be  any  ; and  if  there  be 


EXECUTORS  AND  ADMINISTRATORS. 


29 


none,  then  to  the  widow  and  next  of  kin  of  the  tes- 
tator, or  to  any  creditor  of  the  testator,  in  the  same 
manner  and  under  the  like  regulations  and  restric- 
tions, as  letters  of  administration  in  cases  of  intes- 
tacy. 

§ 43.  Administration  with  the  will  annexed  may 
also  be  granted,  where  the  will  has  been  duly 
proved,  and  letters  testamentary  granted  thereon,  by 
the  courts  of  a foreign  state  or  country  ; as  executors 
appointed  by  the  courts  of  a foreign  state  or  country 
have  no  power  to  act  as  such  in  this  State.  And  unless 
some  of  the  executors  named  in  the  will  are  compe- 
tent to  be  appointed  to  act  as  such,  by  the  Surro- 
gate having  jurisdiction  within  this  State,  it  will  be 
necessary  to  appoint  an  administrator  with  the  will 
annexed. 

§ 44.  In  all  cases  where  letters  of  administration 
with  the  will  annexed  are  granted,  the  will  of  the 
deceased  is  to  be  observed  and  performed ; and  the 
administrators  with  such  will  have  all  the  rights  and 
powers,  and  are  subject  to  the  same  duties,  as  if 
they  had  been  named  executors  in  the  will. 


30 


THE  LAW  OF 


CHAPTER  II. 

OF  EXECUTORS. 

§ 45.  When  a person  makes  a will,  he  generally 
names  one  or  more  persons  to  carry  out  its  pro- 
visions after  his  death  ; the  persons  so  appointed  are 
called  executors.  A will  is  sometimes  made  for  no 
other  purpose  than  to  appoint  executors,  and  the 
distribution  of  the  property  is  left  to  take  the  course 
provided  by  law.  Executors  represent  the  person 
of  their  testator,  and  are  hence  called  personal  rep- 
resentatives ; where  real  estate  is  devised  to  them, 
they  are,  properly  speaking,  as  to  that  estate  trus- 
tees. The  same  person  may  be  both  executor  and 
trustee  under  the  same  will ; but  as  trustees  they 
cannot  be  called  to  account  before  the  Surrogate. 

§ 46.  There  are,  at  common  law,  certain  disabili- 
ties arising  from  social,  physical,  or  mental  defects, 
which  prevent  some  persons  from  fulfilling  the  office 
of  an  executor ; but  the  statutes  of  New- York  de- 
clare that  every  male  person  of  the  age  of  eighteen 
years  or  upwards,  and  every  female,  (whether  mar- 
ried or  not,)  of  the  age  of  sixteen  years  or  upwards, 
of  sound  mind  and  memory,  and  no  others,  may  give 
or  bequeath  his  or  her  personal  estate,  by  will  in 
writing. 


EXECUTORS  AND  ADMINISTRATORS. 


31 


§ 4V.  Formerly  any  person  who  interfered  with 
the  estate  of  the  deceased  was  liable  to  become  an 
j Executor  de  son  tort,  or  of  his  own  wrong.  But  now 
in  New-York,  “no  person  shall  be  liable  to  an  ac- 
tion as  Executor  of  his  own  wrong,  for  haying  re- 
ceived, taken,  or  interfered  with,  the  property  or  ef- 
fects of  a deceased  person  ; but  shall  be  responsible 
as  a wrong-doer  in  the  proper  action  to  the  Execu- 
tors, or  general  or  special  Administrators  of  such 
deceased  person,  for  the  value  of  any  property  or 
effects  so  taken  or  received,  and  for  all  damages 
caused  by  his  acts,  to  the  estate  of  the  deceased.” 

§ 48.  Formerly  also,  where  the  sole,  or  last  sur- 
viving Executor,  deceased,  his  Executor  or  Admi- 
nistrator was  entitled  to  complete  the  settlement  of 
the  estate  of  the  first  Testator,  but  this  also  has  been 
altered  by  the  Revised  Statutes,  which  enact  that, 
“ an  Executor  of  an  Executor  shall  have  no  autho- 
rity to  commence  or  maintain  any  action  or  proceed- 
ing relating  to  the  estate,  effects  or  rights  of  the 
Testator  of  the  first  Executor,  or  to  take  any  charge 
or  control  thereof,  as  such  Executor.” 

§ 49.  The  authority  of  an  Executor  of  course 
arises  from  the  will,  and  it  may  be  either  expressed 
or  implied  ; absolute,  or  qualified  ; exclusive,  or  par- 
ticipated with  others.  An  executor  is  appointed  by 
construction,  when  a testator  merely  recommends  or 
commits  to  him  the  discharge  of  those  duties  which 


32 


THE  LAW  OF 


it  is  the  business  of  an  executor  to  fulfil,  by  investing 
him  with  those  rights  to  which  an  executor  is  enti- 
tled ; or,  by  any  of  those  other  acts  by  which  the 
will  of  a testator  to  invest  him  with  the  executorship 
may  be  plainly  evident  to  any  stranger  or  disinterest- 
ed person.  One  of  the  plainest  of  these  modes 
would  be,  beside  that  of  directly  naming  a party  as 
executor,  to  direct  in  the  will  that  any  particular 
person  shall,  after  his  death,  have  his  personal  pro- 
perty, and  after  payment  of  his  debts  dispose  of  it 
as  he  may  think  proper.  A declaration  that  a par- 
ticular individual  shall  have  the  administration  of  his 
goods,  or  that  he  should  pay  his  debts,  and  expenses 
of  funeral,  and  of  proving  his  will,  is  sufficient  to 
constitute  an  executor. 

§ 50.  Thus,  when  in  his  will  a person  directed 
that,  after  payment  of  his  debts,  funeral  expenses, 
and  several  legacies  which  he  specified,  his  wife 
should  have  the  residue  of  his  property,  on  giving 
security  for  the  performance  of  the  direction  of  his, 
will,  she  was  counted  the  right  executor.  In  a case 
where  it  was  shown  that  an  infant  was  appointed 
executor,  but  that  two  other  individuals  were  named 
as  overseers  for  him  till  he  came  of  age,  with  power 
to  control  and  dispose  of  the  testator’s  effects,  and 
pay  and  receive  debts  till  the  infant  came  of  age,  it 
was  held  that  they  were  to  all  intents  and  purposes 
executors,  till  the  majority  of  the  infant  should  be 


EXECUTORS  AND  ADMINISTRATORS. 


33 


attained.  So,  a person  dying  in  Scotland  directed 
that  the  legatees  should  appoint  two  persons  to  exe- 
cute his  bequests  ; probate  was  granted  to  the  indi- 
viduals named  by  the  parties,  and  they  became  ex- 
ecutors of  the  will. 

§ 51.  The  appointment  of  an  executor  is  absolute 
and  unqualified  when  he  is  constituted  certainly,  im- 
mediately, and  without  any  restriction  as  to  time. 
It  is  qualified  when  any  restriction  is  imposed,  as 
when  one  person  is  appointed  to  be  executor  after 
the  death  of  another,  who  precedes  him  in  the  office ; 
or  where  two  or  more  individuals  are  constituted  ex- 
ecutors, and  upon  their  death,  or  the  death  of  either 
of  them,  other  individuals,  specified  by  the  testator, 
are  to  succeed  them  ; or  where  one  person  is  to  be 
executor,  on  attaining  his  majority,  and  he  is  yet  an 
infant  at  the  testator’s  death,  and  another  individual 
is  to  act  in  the  mean  time  ; or  where  two  individuals 
are  appointed  executors,  and  one  is  restricted  from 
acting  during  the  life  of  the  other ; or  where  two  or 
more  individuals  are  appointed,  and  others  are  spe- 
cified on  their  refusing  to  act ; or  where  an  individual 
is  appointed  on  condition  of  his  giving  security  to 
fulfil  the  directions  of  the  will.  Executors  may  also 
be  qualified  or  restricted  in  their  powers  in  having 
a certain  portion  of  the  testator’s  estate  to  appropri- 
ate. Thus,  one  executor  may  be  appointed  for  the 
plate  and  household  goods,  another  for  farming  stock, 
4 


34 


THE  LAW  OF 


another  for  leases,  and  a fourth  for  debts,  or  accord- 
ing to  any  other  specific  division  of  the  property. 
So,  also,  one  executor  may  be  appointed  for  the  pro- 
perty in  one  county,  and  another  for  that  in  ano- 
ther ; or  more  especially  when  the  property  lies  in 
different  countries  instead  of  counties.  But,  whether 
there  be  one  executor  or  more,  the  person  or  per- 
sons appointed  for  carrying  out  the  provisions  of  a 
will  are  always  considered,  by  the  law,  as  one  indi- 
vidual. 

§ 52.  In  declaring  who  are  competent  to  act  as  ex- 
ecutors, and  who  not,  the  Revised  Statutes  of  New- 
York  provide  that  no  person  shall  be  deemed  com- 
petent to  serve  as  an  executor,  who,  at  the  time  the 
will  is  proved,  shall  be — 

“ 1.  Incapable  in  law  of  making  a contract,  (ex- 
cept married  women ;) 

“ 2.  Under  the  age  of  twenty-one  years  ; 

“3.  An  alien,  not  being  an  inhabitant  of  this 
State ; 

“ 4.  Who  shall  have  been  convicted  of  an  infa- 
mous crime ; 

“ 5.  Who,  upon  proof,  shall  be  adjudged  incom- 
petent by  the  Surrogate  to  execute  the  duties  of 
such  trust,  by  reason  of  drunkenness,  improvidence, 
or  want  of  understanding. 

“ If  any  such  person  be  named  as  the  sole  execu- 
tor in  any  will,  or  if  all  the  persons  named  therein 


EXECUTORS  AND  ADMINISTRATORS. 


35 


as  executors,  be  incompetent,  letters  of  administra- 
tion, with  the  will  annexed,  shall  be  issued,  as  in  the 
case  of  all  the  executors  renouncing.” 

§ 53.  The  statute  further  provides,  that  “ no  mar- 
ried woman  shall  be  entitled  to  letters  testamentary, 
unless  her  husband  consent  thereto,  by  a writing  to 
be  filed  with  the  Surrogate ; and  by  giving  such 
consent,  he  shall  be  deemed  responsible  for  her  acts 
jointly  with  her.” 

§ 54.  The  statute  speaks  of  disabilities  at  the  time 
the  will  is  proved  ; if,  therefore,  an  Executrix  proves 
the  will,  and  marry,  she  will  still  be  entitled  to  act 
as  Executrix,  jointly  with  her  husband,  but  not  with- 
out her  husband ; although  the  husband  can  act  in 
the  administration,  for  all  purposes,  with  or  without 
her  assent.  If  the  husband  die,  she  will  continue 
entitled  to  act,  but  if  the  wife  die,  the  husband’s 
authority  will  cease. 

§55.  If  an  Executrix  marries  after  being  appointed, 
the  statute  leaves  it  in  the  discretion  of  the  Surro- 
gate, upon  the  application  of  any  person  inte- 
rested, whether  to  revoke  the  appointment  or 
not.  Such  authority  to  the  Surrogate  was  highly 
necessary,  as  the  husband  may  be  a very  improper 
person  to  have  charge  of  the  estate,  and  it  can  only 
be  prevented  by  revoking  the  letters  testamentary 
granted  to  the  wife. 


36 


THE  LAW  OF 


§ 56.  If  an  infant  attain  the  age  of  twenty-one  years, 
or  a married  woman  become  a widow,  or  be  divorced, 
or  an  alien  become  an  inhabitant  of  this  State,  or  a 
citizen  of  the  United  States,  before  the  execution  of 
the  will  is  completed,  such  person  will  be  entitled  to 
act  as  Executor  in  the  further  execution  thereof, 
upon  obtaining  supplementary  letters  testamentary 
from  the  Surrogate.  Such  letters  can  be  obtained 
by  application  to  the  Surrogate,  in  the  same  manner 
as  original  letters  are  obtained. 

§ 57.  At  common  law  an  Executor  had  the  same 
power  over  the  property  of  the  testator  before,  as  after, 
the  probate  of  the  will,  but  this  was  altered  by  the 
New-York  Revised  Statutes,  which  provide  that 
“ no  executor  named  in  a will  shall,  before  letters 
testamentary  are  granted,  have  any  power  to  dispose 
of  any  part  of  the  estate,  except  to  pay  funeral 
charges,  nor  to  interfere  with  such  estate  in  any 
manner,  further  than  is  necessary  for  its  preservation. 
Unless  the  Executor,  therefore,  intends  to  take  out 
letters  testamentary,  and  to  act  as  Executor,  he 
should  not  interfere  in  any  manner  with  the  estate, 
but  in  justice  to  those  interested  ought  at  once  make 
known  his  determination,  and  renounce  the  trust,  so 
that  an  Administrator  with  the  will  annexed  may  be 
appointed  to  take  charge  of  the  property. 

§ 58.  It  is  a duty  to  the  deceased  that  his  remains 
should  be  interred  with  all  decency  and  respect,  and 


EXECUTORS  AND  ADMINISTRATORS.  37 

the  expenses  of  the  funeral  are,  therefore,  allowed 
by  law  before  any  other  charges.  But,  then,  it  must 
be  conducted  in  strict  proportion  to  the  estate  left 
by  the  deceased  ; and,  if  the  executor  or  administra- 
tor be  guilty  of  any  extravagance,  he  is  liable  to  a 
charge  for  waste , which,  upon  suit  by  the  creditors 
or  legatees,  he  would  have  to  satisfy  out  of  his  own 
pocket.  If  the  executor  or  administrator  neglect  to 
give  the  requisite  orders  for  the  funeral  he  is  liable 
to  the  person  who  furnishes  it,  as  if  he  had  given  a 
promise  to  that  effect. 

§ 59.  No  person  who  has  accepted  an  executorship 
has  power  to  resign  the  duty,  but  any  one  may  decline 
it.  A mere  verbal  refusal  is  not  sufficient,  for  the 
fact  of  refusal  must  be  recorded  in  order  that  the 
Surrogate  may  grant  administration,  with  the  will 
annexed,  to  another  party.  He  may  voluntarily  re- 
nounce the  office,  by  a writing  to  be  signed  by  him, 
and  attested  by  two  witnesses  ; or  in  case  he  neglect 
to  qualify  within  thirty  days  after  the  will  shall  be 
proved,  the  Surrogate  will,  upon  application  of  any 
other  executor,  or  of  the  widow,  or  any  of  the  next 
of  kin,  or  any  legatee,  or  creditor  of  the  testator, 
summon  him  to  appear  and  qualify  within  a certain 
time,  to  be  limited  by  the  Surrogate,  and  if  he  refuse 
to  qualify,  after  being  personally  served  with  such 
summons,  for  at  least  fourteen  days  before  the  return 
4* 


38 


THE  LAW  OF 


day  thereof,  he  shall  be  deemed  to  have  renounced, 
and  the  Surrogate  will  enter  a decree  to  that  effect. 
After  renunciation  he  cannot  resume  the  executor- 
ship, but  is  in  the  same  situation  as  if  he  had  not 
been  named  in  the  will. 

§ 60.  If  there  be  two  executors,  and  one  renounce, 
the  duty  and  authority  will  fall  upon  the  other  ; for,  if 
there  be  more  executors  than  one,  administration 
with  the  will  annexed  will  not  be  granted,  unless 
they  all  renounce. 

§ 61.  Either  of  the  executors  named  in  the  will,  or 
any  devisee,  legatee  or  other  person  interested  in  the 
estate,  may  apply  to  the  proper  Surrogate  to  have 
the  will  proved,  at  any  time  after  the  death  of  the 
testator. 

§ 62.  Surrogates  of  the  several  counties  have  exclu • 
■sive  jurisdiction  to  take  the  proof  of  wills,  under  the 
following  circumstances,  viz. : 

“1.  Where  the  testator  at,  or  immediately  pre- 
vious to  his  death,  was  an  inhabitant  of  the  county 
of  such  Surrogate,  in  whatever  place  such  death  may 
have  happened ; 

“ 2.  Where  the  testator,  not  being  an  inhabitant 
of  this  State,  shall  die  in  the  county  of  such  Surro- 
gate, leaving  assets  therein ; 

“3.  Where  the  testator,  not  being  an  inhabitant 
of  this  State,  shall  die  out  of  the  State,  leaving  assets 
in  the  county  of  such  Surrogate ; 


EXECUTORS  AND  ADMINISTRATORS. 


39 


“ 4.  Where  a testator  not  being  an  inhabitant  of 
this  State,  shall  die  out  of  the  State,  not  leaving 
assets  therein,  but  assets  of  such  testator  shall  there- 
after come  into  the  county  of  such  Surrogate  ; 

“5.  Where  no  Surrogate  has  gained  jurisdiction 
under  either  of  the  preceding  clauses,  and  any  real 
estate  devised  by  the  testator  shall  be  situated  in  the 
county  of  such  Surrogate.” 

§ 63.  Where  a will  of  personal  property  has  been 
proved  before  any  Surrogate,  he  has  jurisdiction,  ex- 
clusive of  every  other  Surrogate , over  the  executors, 
and  of  granting  letters  testamentary,  and  of  adminis- 
tration with  the  will  annexed,  with  all  the  powers 
incident  thereto. 

§ 64.  When  the  Executor  or  other  person  intends  to 
apply  to  the  Surrogate  for  the  purpose  of  proving 
the  will,  he  should  ascertain,  and  be  able  to  prove, 
by  his  own  oath,  or  the  oath  of  some  other  person, 
the  names  and  places  of  residence  of  the  widow  and 
children  of  the  testator ; and  in  case  of  the  death  of 
any  child  of  the  testator,  the  names  and  places  of 
residence  of  the  children  of  any  such  deceased  child ; 
and  if  the  deceased  child  were  a daughter,  the  name 
and  place  of  residence  of  her  husband,  if  he  survive ; 
also  whether  any  such  persons  are  minors,  and  the 
names  and  places  of  residence  of  the  general  guar- 
dians of  such  minors,  if  they  have  any. 

§ 65.  He  should  take  the  will,  if  in  his  possession,  to 


40 


THE  LAW  OF 


the  Surrogate,  and  leave  it  with  him  : if  not  in  his  pos- 
session, he  must  either  procure  it  from  the  person 
having  it  in  custody,  or  in  case  such  person  refuses 
to  deliver  it,  or  to  produce  it  before  the  Surrogate 
voluntarily,  the  person  intending  to  apply  to  have 
the  will  proved,  must  apply  to  the  Surrogate  for  a 
citation  to  compel  the  person  in  whose  custody  or 
possession  the  will  is,  to  produce  it  before  the  Sur- 
rogate. 

§ 66.  On  application  to  the  Surrogate,  he  shall  as- 
certain by  satisfactory  evidence,  the  following  facts : 

“ 1.  If  the  will  relate  exclusively  to  real  estate, 
the  names  and  places  of  residence  of  the  heirs  of  the 
testator,  or  that  upon  diligent  inquiry  the  same  can- 
not be  ascertained ; 

“ 2.  If  the  will  relate  exclusively  to  personal  es- 
tate, the  names  and  places  of  residence  of  the  widow 
and  next-of-kin  of  the  testator,  or  that  upon  diligent 
inquiry  the  same  cannot  be  ascertained ; 

“ 3.  If  the  will  relate  to  both  real  and  personal 
estate,  the  names  and  places  of  residence  of  the 
heirs,  widow  and  next-of-kin  of  the  testator,  or  that 
upon  diligent  inquiry  the  same  cannot  be  ascer- 
tained.5 ’ 

The  Surrogate  must  also  ascertain  whether  any 
and  which  of  the  persons  mentioned  in  the  preceding 
section  are  minors,  and  the  names  and  places  of  resi- 
dence of  their  general  guardians,  if  they  have  any ; 


EXECUTORS  AND  ADMINISTRATORS. 


41 


and  if  there  is  no  general  guardian  within  this  State, 
the  Surrogate  shall  appoint  a special  guardian  for 
such  minor,  to  take  care  of  his  interest  in  the  premi- 
ses, with  the  written  consent  of  the  person  so  ap- 
pointed to  serve  as  such.  The  testamentary  guar- 
dian named  in  the  will  to  be  proved,  will  not  for  this 
purpose  be  deemed  a general  guardian. 

§ 67.  The  Surrogate  then  issues  a citation  requiring 
the  proper  person,  at  a certain  time  and  place,  to 
appear  and  attend  the  probate  of  the  will : the  cita- 
tion states  who  has  applied  for  the  proof  of  the  will, 
and  whether  it  relates  exclusively  to  either  real  or 
personal  estate  ; it  is  to  be  directed  to  the  proper 
persons  by  name,  stating  their  places  of  residence,  or 
if  any  of  them  are  minors,  to  their  guardians.  And 
if  the  name  or  place  of  residence  of  any  person  who 
ought  to  be  cited  cannot  be  ascertained,  such  fact 
shall  be  stated  in  the  citation. 

§ 68.  The  citation  must  be  served  on  the  persons  to 
whom  it  is  directed,  as  follows  : 

“1.  On  such  as  reside  in  the  same  county  with 
the  Surrogate,  or  an  adjoining  county,  by  delivering 
a copy  to  such  person,  at  least  eight  days  before  the 
day  appointed  for  taking  the  proof ; or  by  leaving  a 
copy  at  least  eight  days  as  aforesaid,  at  the  dwelling 
house  or  other  place  of  residence  of  such  person, 
with  some  individual  of  suitable  age  and  discretion, 
and  under  such  circumstances  as  shall  induce  a rea- 


42 


THE  LAW  OF 


sonable  presumption  in  the  mind  of  the  Surrogate, 
that  the  copy  came  to  the  hands  or  knowledge  of 
the  person  to  be  served  with  it,  in  time  for  him  to 
attend  the  probate  of  the  will ; 

“ 2.  On  such  as  reside  in  any  other  county  in  this 
State,  by  delivering  a copy  personally  to  such  person, 
or  leaving  it  at  his  dwelling  house  or  other  place  of 
residence,  in  the  manner  and  under  the  circumstances 
above  mentioned,  at  least  fifteen  days  before  the  day 
appointed  for  taking  the  proof ; 

“ 3.  On  such  persons  as  do  not  reside  in  this  State, 
citations  may  be  served  by  delivering  a copy  per- 
sonally to  such  persons,  or  leaving  it  at  his  or  her 
dwelling  house,  or  other  place  of  residence,  not  less 
than  fifteen  days  nor  more  than  ninety  days  before 
the  day  appointed  for  taking  proof  of  any  will ; and 
on  such  persons  as  do  not  reside  in  this  State,  or 
whose  places  of  residence  cannot  be  ascertained,  by 
publishing  a copy  of  the  citation  in  the  State  paper 
for  six  weeks  previous  to  the  day  appointed  for 
taking  the  proof.” 

§ 69.  Before  proceeding  to  take  the  proof  of  any 
will,  the  Surrogate  will  require  satisfactory  evidence, 
by  affidavit,  of  the  service  of  the  citation,  in  the  mode 
prescribed  by  law.  If  it  has  not  been  duly  served 
on  all  the  persons  who  ought  to  receive  notice,  the 
Surrogate  may  adjourn  the  proceedings  and  issue  a 
further  citation  for  the  purpose  of  bringing  in  such 
persons. 


EXECUTORS  AND  ADMINISTRATORS. 


43 


§ *70.  Upon  proof  being  made  of  the  due  service  of 
the  citation,  the  Surrogate  will  cause  the  witnesses  to 
be  examined  before  him ; and  the  proofs  and  examina- 
tions to  be  reduced  to  writing.  Two  at  least  of  the 
witnesses  to  such  will,  if  so  many  are  living  in  this 
State,  and  of  sound  mind,  and  are  not  disabled  from 
age,  sickness  or  infirmity  from  attending,  must  be 
produced  and  examined ; and  the  death,  absence, 
insanity,  sickness,  or  other  infirmity  of  any  of  them, 
must  be  satisfactorily  shown  to  the  Surrogate  taking 
such  proof ; the  Surrogate  will  inquire  particularly 
into  the  facts  and  circumstances  before  establishing 
the  same  or  granting  letters  testamentary  or  of  ad- 
ministration thereof. 

§ 71.  If  any  person  interested  in  the  will  shall,  be- 
fore probate  made,  file  with  the  Surrogate  a request  in 
writing  that  all  the  witnesses  to  the  will,  or  any  other 
material  witness,  though  he  may  not  be  a subscribing 
witness,  shall  be  examined ; then  all  such  witnesses 
living  in  this  State,  and  of  sound  mind,  and  who  are 
not  disabled  from  age,  sickness  or  infirmity,  from 
attending,  shall  be  produced  and  examined  : and  the 
death,  absence,  insanity,  sickness,  or  other  infirmity 
of  any  of  them,  shall  be  satisfactorily  shown  to  the 
Surrogate  before  taking  such  proof. 

§ *72.  If  any  such  aged,  sick  or  infirm  witness,  reside 
in  the  same  county  with  the  Surrogate,  it  is  made  the 
duty  of  the  Surrogate,  after  examining  the  other 


44 


THE  LAW  OP 


witnesses,  to  proceed  without  unnecessary  delay  to 
the  residence  of  the  witness,  and  take  the  examina- 
tion of  such  witness,  in  the  same  manner  and  with 
the  like  effect  as  though  such  witness  had  attended 
and  been  examined  before  the  Surrogate  on  the 
return  of  the  citation. 

§ 73.  If  such  aged,  sick  or  infirm  witness  reside  in  a 
different  county  from  the  Surrogate,  and  his  attend- 
ance cannot  probably  be  procured  within  a reason- 
able time,  the  Surrogate  may,  after  having  examined 
the  other  witnesses,  adjourn  the  proceeding  to  some 
future  day,  and  direct  that  such  aged,  sick  or  infirm 
witness  be  examined  before  the  Surrogate  of  the 
county  in  which  he  resides,  specifying  some  Monday, 
on  or  before  which  the  said  order  shall  be  delivered 
to  the  Surrogate  directed  to  take  the  examination,  a 
copy  of  which  order,  under  the  seal  of  the  Surrogate 
making  the  same,  together  with  the  original  will,  is 
to  be  delivered  to  the  person  applying  for  the  pro- 
bate, to  be  transmitted  to  the  Surrogate  directed  to 
take  the  examination. 

§ 74.  The  latter  Surrogate,  upon  receiving  such  or- 
der, will  appoint  a time  and  place  for  taking  the  exami- 
nation, and  give  due  notice  thereof ; and  he  will  then 
proceed  to  take  the  examination  of  such  aged,  sick 
or  infirm  witness,  in  the  same  manner  and  with  the 
like  effect  as  though  such  witness  had  attended  and 
been  examined  before  the  Surrogate  having  original 


EXECUTORS  AND  ADMINISTRATORS. 


45 


jurisdiction  on  the  return  of  the  citation.  The  Sur- 
rogate may  also  issue  subpoenas  to  compel  the  at- 
tendance of  witnesses.  Notice  of  the  time  and  place 
of  every  such  examination  must  be  given  by  the 
party  at  whose  request  the  examination  is  had,  to  all 
the  parties  who  appeared  before  the  Surrogate, 
which  notice  must  be  served  at  least  fourteen  days 
before  the  time  of  such  examination. 

§ 75.  This  examination  is  to  be  reduced  to  writing 
and  subscribed  by  the  witnesses  ; and,  together  with 
a statement  of  the  proceedings  before  the  Surrogate 
taking  the  same,  shall  be  certified  by  him  under  his 
seal  of  office,  and  returned  without  delay  to  the  Sur- 
rogate who  ordered  such  examination. 

§ 76.  Upon  the  return  of  the  depositions,  with 
such  other  proofs  as  may  have  been  adduced  before 
him,  the  Surrogate  to  whom  the  original  application 
was  made,  will,  on  the  day  to  which  the  proceeding 
in  his  court  has  been  adjourned,  or  as  soon  thereafter 
as  practicable,  proceed  to  determine  on  the  sufficiency 
of  the  proof  of  such  will. 

§ 77.  No  written  will  of  real  or  personal  estate, 
or  both,  will  be  deemed  to  be  proved,  until  the  wit- 
nesses to  the  same  residing  within  this  State  at  the 
time  of  such  proof,  of  sound  mind  and  competent  to 
testify,  shall  have  been  examined  pursuant  to  law ; 
and  in  all  cases  the  oath  of  the  person  who  received 
the  will  from  the  testator,  if  he  can  be  produced,  to- 
' 5 


46 


THE  LAW  OF 


gether  with  the  oath  of  the  person  presenting  the 
same  for  probate,  stating  the  circumstances  of  the 
execution,  the  delivery  and  the  possession  thereof 
may  be  required ; and  before  recording  any  will,  or 
admitting  the  same  to  probate,  the  Surrogate  must 
be  satisfied  of  its  genuineness  and  validity. 

§ 78.  If  all  the  witnesses  to  a will  shall  be  dead, 
insane,  out  of  the  State,  or  incompetent  to  testify,  the 
Surrogate  may  take  and  receive  proof  of  the  hand- 
writing of  the  testator,  and  of  the  subscribing  wit- 
nesses, and  of  such  other  facts  and  circumstances  as 
would  be  proper  to  prove  such  will  on  a trial  at 
law ; and  if  such  proof  shall  be  satisfactory  to  the 
Surrogate,  the  will  may  be  admitted  to  probate,  and 
be  recorded  as  a will  of  personal  estate  only,  and  so 
as  to  effect  only  the  personal  estate  of  the  testator. 

§ 79.  The  Surrogate  will  enter  in  his  minutes  the 
decision  which  he  may  make  concerning  the  suf- 
ficiency of  the  proof,  or  validity  of  any  will  which 
may  be  offered  for  probate  ; and  in  case  he  shall  de- 
cide against  the  sufficiency  of  the  proof,  or  the 
validity  of  any  such  will,  he  shall,  without  fee  or 
charge,  state  the  ground  upon  which  the  decision  is 
made,  if  required  by  either  party. 

§ 80.  When  any  one  or  more  of  the  subscribing 
witnesses  to  such  will  shall  be  examined,  and  the 
other  witnesses  are  dead,  or  reside  out  of  the  State, 
or  are  insane,  then  such  proof  shall  be  taken  of  the 


EXECUTORS  AND  ADMINISTRATORS. 


47 


handwriting  of  the  testator,  and  of  the  witness  or 
witnesses  so  dead,  absent,  or  insane,  and  of  such 
other  circumstances  as  would  be  sufficient  to  prove 
such  will  on  a trial  at  law. 

§ 81.  If  it  shall  appear  to  the  satisfaction  of  the 
Surrogate,  that  all  the  subscribing  witnesses  to  any 
such  will  are  dead,  insane,  or  reside  out  of  the  State, 
the  Surrogate  shall  take  and  receive  such  proof  of 
the  handwriting  of  the  testator,  and  of  either  or  all 
the  subscribing  witnesses  to  the  will,  and  of  such 
other  facts  and  circumstances  as  would  be  proper  to 
prove  such  will,  on  a trial  at  law.  The  only  proof 
necessary  to  establish  a will,  on  a trial  at  law,  where 
the  witnesses  are  dead,  insane,  or  out  of  the  State, 
will  be  evidence  of  the  handwriting  of  the  witnesses, 
unless  something  should  appear  upon  the  face  of  the 
will  to  create  a suspicion  of  its  genuineness  ; and  in 
that  case,  the  handwriting  of  the  testator  must  be 
proved,  in  addition  to  proof  of  the  handwriting  of 
the  subscribing  witnesses. 

§ 82.  If  the  Surrogate  is  satisfied,  from  the  proofs 
taken,  that  the  will  was  duly  executed,  that  the  tes- 
tator, at  the  time  of  executing  the  same,  was  in  all 
respects  competent  to  devise  real  estate,  and  not 
under  restraint,  he  must  record  the  will,  and  the 
proof  and  examinations  taken  thereupon;  and  he 
then  endorses  upon  the  will  a certificate,  under  his 
hand  and  seal  of  office,  showing  that  such  will  has 


48 


THE  LAW  OF 


been  admitted  to  probate,  which  will  authorize  the 
production  of  it  in  evidence. 

§ 83.  If  any  of  the  subscribing  witnesses  are  in- 
terested, by  means  of  any  appointment,  devise,  or 
legacy  made  or  given  him  by  the  will,  and  such  will 
cannot  be  proved  without  the  testimony  of  such 
witness,  the  appointment,  devise,  or  legacy  will  be 
void,  and  the  witness  may,  notwithstanding,  be  ex- 
amined. 

§ 84.  Where  a will  of  personal  estate  duly  exe- 
cuted in  this  State,  by  a person  not  a resident  of  this 
State,  shall  in  the  first  instance  have  been  duly  ad- 
mitted to  probate  in  a court  of  a foreign  state  or 
country,  letters  testamentary  or  of  administration, 
with  the  will  annexed,  may  be  issued  thereon  by 
any  Surrogate  having  jurisdiction,  upon  the  produc- 
tion of  a duly  exemplified  or  authenticated  copy  of 
such  will,  under  the  seal  of  the  court  in  which  the 
same  shall  have  been  proved. 

§ 85.  Where  the  witnesses  to  a will  all  reside  out 
of  the  State,  it  may  be  proved  in  the  Supreme  Court ; 
and  if  the  original  will  is  in  possession  of  some  court 
of  justice,  so  that  it  cannot  be  obtained,  an  exempli- 
fied copy  thereof  may  be  proved,  upon  a commission 
to  be  issued  by  the  Supreme  Court  for  the  purpose. 
Such  commission  will  be  issued,  upon  the  applica- 
tion of  any  person  interested  in  establishing  the  will ; 
notice  to  others  may  be  given,  or  dispensed  with,  in 


EXECUTORS  AND  ADMINISTRATORS. 


49 


the  discretion  of  the  court.  And  these  provisions 
apply  to  wills  of  real,  as  well  as  to  those  of  personal 
estate ; so  that  wills  of  personal  estate,  when  execu- 
ted by  persons  residing  out  of  this  State,  according 
to  the  laws  of  the  State  or  country  in  which  they 
were  made,  may  also  be  proved  under  a similar  com- 
mission, to  be  issued  for  that  purpose. 

§ 86.  In  taking  proof  of  the  will  it  must  appear 
that  the  will  was  subscribed  by  the  testator  at  the 
end  thereof,  and  that  it  was  so  subscribed  in  the 
presence  of  each  of  the  attesting  witnesses  ; or  if  the 
witnesses,  or  either  of  them,  do  not  actually  see  him 
sign,  then  he  must  acknowledge  to  such  witness  that 
he  did  sign  it.  The  testator  must,  at  the  same  time, 
declare  the  instrument  so  subscribed  to  be  his  last 
will  and  testament — and  all  this  must  be  done  in  the 
presence  of  at  least  two  attesting  witnesses,  each  of 
whom  must  sign  his  name  as  a witness  at  the  end  of 
the  will,  at  the  request  of  the  testator. 

§ 87.  The  statute  also  requires  each  witness  to 
write  opposite  his  name  the  place  of  his  residence, 
and  imposes  a penalty  of  fifty  dollars,  in  case  he 
neglects  to  do  so.  But  the  omission  of  this  by  the 
witness  does  not  invalidate  the  will. 

§ 88.  The  probate  of  any  will  oi  personal  property 
taken  by  the  Surrogate,  is  conclusive  evidence  of  the 
validity  of  the  will,  until  it  be  reversed  on  appeal, 
or  revoked  by  the  Surrogate.  Such  appeal  lies  from 
5* 


50 


THE  LAW  OF 


the  decision  of  the  Surrogate  to  the  general  term  of 
the  Supreme  Court  of  the  district  in  which  the  Sur- 
rogate resides. 

§ 89.  Notwithstanding  a will  of  personal  property 
may  have  been  admitted  to  probate,  any  of  the  next- 
of-kin  to  the  testator  may,  at  any  time  within  one 
year  after  probate,  contest  the  same  by  filing,  in  the 
office  of  the  Surrogate  before  whom  the  will  was 
proved,  his  allegations  in  writing,  against  the  validity 
of  such  will,  or  against  the  competency  of  the  proof. 

§ 90.  The  Surrogate  then  cites  the  executor  or 
the  administrator  with  the  will  annexed,  and  all  the 
legatees  named  in  the  will,  residing  in  this  State  ; or 
their  guardians,  if  any  of  them  be  minors  ; or  their 
personal  representatives,  if  any  of  them  be  dead,  to 
appear  before  him,  on  some  day  to  be  specified,  in 
not  less  than  thirty  nor  more  than  sixty  days,  at  his 
office,  to  show  cause  why  the  probate  of  such  will 
should  not  be  revoked. 

§ 91.  After  the  service  of  the  citation,  the  execu- 
tor or  administrator  must  suspend  all  proceedings  in 
relation  to  the  estate  of  the  testator,  except  the  col- 
lection and  recovery  of  moneys  and  the  payment  of 
debts,  until  a decision  shall  be  had  thereon. 

§ 92.  At  the  time  appointed,  due  proof  being 
made  of  the  personal  service  of  the  citation  upon 
every  person  named  therein,  at  least  fourteen  days 
before  the  time  appointed  for  showing  cause,  the 


EXECUTORS  AND  ADMINISTRATORS. 


51 


Surrogate  will  proceed  to  hear  the  proofs  of  the  par- 
ties. If  any  legatees  named  in  the  will  contested  be 
minors,  and  have  no  guardians,  he  must  appoint 
guardians  to  take  care  of  their  interests  in  the  con- 
troversy. 

§ 93.  If,  upon  hearing  the  proofs  of  the  parties, 
the  Surrogate  decides  that  such  will  is  for  any  reason 
invalid,  or  that  it  is  not  sufficiently  proved  to  have 
been  the  last  will  and  testament  of  the  testator,  he 
will  annul  and  revoke  the  probate  thereof ; if  other- 
wise, he  shall  confirm  such  probate.  All  such  de- 
cisions are  subject  to  appeal,  and  upon  any  such 
hearing  before  the  Surrogate,  the  depositions  of  wit- 
nesses taken  on  the  first  proof  of  the  will,  who  may 
be  dead,  insane,  or  out  of  the  State,  may  be  received 
in  evidence. 

§ 94.  If  the  Surrogate  revoke  the  probate,  he 
must  enter  such  revocation  upon  his  records ; and 
cause  notice  to  be  served  immediately  upon  the  ex- 
ecutors or  administrators,  with  the  will  annexed,  and 
to  be  published  for  three  weeks  in  a newspaper 
printed  in  the  county. 

§ 95.  The  powers  and  duties  of  the  executors  or 
administrators,  with  the  will  annexed,  cease,  upon 
being  served  with  such  notice ; and  they  must  ac- 
count to  the  persons  who  shall  be  appointed  by  the 
personal  representatives  of  the  deceased  for  all 
moneys  and  effects  received  by  them.  But  they 


52 


THE  LAW  OF 


will  not  be  liable  for  any  act  done  by  them  in  good 
faith,  previous  to  the  service  upon  them  of  the  cita- 
tion, nor  of  any  act  so  done  in  the  collection  of 
moneys,  or  the  payment  of  debts,  after  the  service 
of  the  citation,  and  previous  to  the  service  of  the 
notice  of  revocation. 

§ 96.  If  the  probate  is  confirmed,  the  party  con- 
testing will  be  required  to  pay  the  fees  and  expenses 
of  the  Surrogate.  If  the  probate  be  revoked,  the 
Surrogate  may  require  the  party  resisting  such  re- 
vocation to  pay  the  costs  and  expenses  of  the  pro- 
ceedings, either  personally,  or  out  of  the  property 
of  the  deceased. 

§ 97.  The  Surrogate  before  whom  the  will  is 
proved,  may  grant  letters  testamentary  at  any  time 
after  the  will  is  proved,  unless  an  affidavit  is  made 
by  a widow,  legatee,  next-of-kin,  or  creditor  of  the 
testator,  setting  forth  that  such  person  intends  to  file 
objections  against  the  granting  of  such  letters  testa- 
mentary, and  that  he  is  advised  and  believes  there 
are  just  and  substantial  objections  to  the  granting  of 
such  letters  to  the  executors  named  in  the  will,  or 
some  one  or  more  of  them.  And  upon  filing  such 
affidavit  with  the  Surrogate,  he  shall  stay  the  grant- 
ing of  letters  testamentary  for  at  least  thirty  days, 
unless  the  matter  shall  sooner  be  disposed  of. 

§ 98.  The  Surrogate  formerly  had  no  power  to 
require  executors,  in  any  case,  to  give  security  ; their 


EXECUTORS  AND  ADMINISTRATORS. 


53 


appointment  being  by  virtue  of  the  will  of  the  testa- 
tor, and  the  letters  testamentary  being  but  the  evi- 
dence of  such  appointment ; but  now,  if  objections  are 
made  by  any  creditor,  legatee,  relative,  or  other  person 
interested  in  the  estate,  against  granting  letters  tes- 
tamentary to  one  or  more  of  the  persons  named  in 
the  will  as  executors,  the  Surrogate  shall  inquire  into 
such  objections ; and  if  it  appear  that  the  circum- 
stances of  any  person  named  as  executor  are  such* 
that  in  the  opinion  of  the  Surrogate  they  would 
not  afford  adequate  security  to  the  creditors,  lega- 
tees and  relatives  of  the  deceased  for  the  due  ad- 
ministration of  the  estate,  he  may  refuse  letters  tes- 
tamentary to  any  such  person,  until  he  shall  give  the 
like  bond,  as  is  required  by  law,  of  administrators  in 
cases  of  intestacy.  Nor  will  letters  testamentary,  in 
any  case,  be  granted  to  a non-resident  of  the  State* 
until  the  applicant  shall  give  the  like  bond. 

§ 99.  If,  after  letters  testamentary  shall  have  been 
granted  to  any  person  named  as  executor,  in  any 
will,  complaint  is  made  to  the  Surrogate  of  the 
county  in  which  such  letters  were  granted,  by  any 
person  interested  in  the  estate  of  the  deceased,  that 
the  person  so  appointed  executor  has  become  incom- 
petent by  law  to  serve  as  such,  or  that  his  circum- 
stances are  so  precarious  as  not  to  afford  adequate 
security  for  his  due  administration  of  the  estate,  or 
that  he  has  removed,  or  is  about  to  remove  from  this 


54 


THE  LAW  OF 


State,  the  Surrogate  shall  proceed  to  inquire  into 
such  complaint.  After  citing  the  party  before  him, 
he  will  proceed  to  hear  the  proofs  and  allegations ; 
and  if  it  appear  that  the  circumstances  of  the  execu- 
tor are  precarious,  or  that  he  has  removed,  or  is 
about  to  remove  from  this  State,  he  shall  require 
such  executor  to  give  bond,  with  sureties  like  those 
required  by  law  of  administrators,  within  a reason- 
able time,  not  exceeding  five  days. 

§ 100.  In  reference  to  this  security,  it  is  held  that 
an  executor  can  be  required  to  give  security  only 
when  the  Surrogate  is  satisfied  that  his  circumstances 
are  such  as  to  render  it  doubtful  whether  the  pro- 
perty of  the  testator  will  be  safe  in  his  hands,  to  be 
disposed  of  as  directed  by  the  will.  That  the  mere 
fact  that  the  executor  is  not  possessed  of  property 
of  his  own,  equal  in  value  to  that  of  the  estate  of 
which  he  is  the  executor,  is  not  a sufficient  ground 
for  requiring  him  to  give  security. 

§ 101.  If  an  executor  neglects  to  give  a bond  when 
required  by  the  Surrogate  ; or  if  he  has  removed,  or 
is  about  to  remove  from  the  Sfate,  or  his  circum- 
stances have  become  so  precarious  as  not  to  afford 
adequate  security  for  his  due  administration  of  the 
ostate ; or  from  any  other  cause  has  become  legally 
incompetent  to  serve  as  executor,  the  Surrogate  is 
required  to  supersede  the  letters  testamentary  issued 
to  him : and  his  rights  and  authority  as  an  executor 


EXECUTORS  AND  ADMINISTRATORS. 


55 


thereupon  cease.  And  the  Surrogate,  in  either 
event,  will  grant  letters  of  administration  with  the 
will  annexed,  of  the  assets  of  the  deceased  left  un- 
administered. So,  if  an  executrix  marry  after  her 
appointment,  the  Surrogate,  upon  the  application  of 
any  person  interested,  may  revoke  such  appointment. 

§ 102.  In  case  any  one  of  several  executors  or 
administrators,  to  whom  letters  testamentary  or  of 
administration  are  granted,  shall  die,  become  lunatic, 
convicted  of  an  infamous  crime,  or  otherwise  become 
incapable  of  executing  the  trust  reposed  in  him  ; or 
in  case  the  letters  testamentary  or  of  administration 
shall  be  revoked  or  annulled  according  to  law,  with 
respect  to  any  one  executor  or  administrator,  then 
the  remaining  executors  and  administrators  shall 
proceed  and  complete  the  execution  of  the  will  or 
the  administration  according  to  law. 

§ 103.  If  all  the  executors  and  administrators 
shall  die,  or  become  incapable,  or  the  power  and 
authority  of  all  of  them  shall  be  revoked  according 
to  law,  the  Surrogate  having  authority  to  grant  let- 
ters originally  shall  issue  letters  of  administration 
upon  the  goods,  chattels,  credits  and  effects  of  the 
deceased  left  unadministered,  with  the  will  annexed, 
or  otherwise,  as  the  case  may  be,  to  the  widow  or 
next-of-kin,  or  creditors  of  the  deceased,  or  others,  in 
the  same  manner  as  original  letters  of  administration 
are  directed  to  issue ; which  letters  will  supersede 


56 


THE  LAW  OF 


all  former  and  other  letters  testamentary,  and  of  ad- 
ministration, upon  the  same  estate. 

§ 104.  It  was  held  by  Chancellor  Walworth  that 
because  an  executor  was  over  eighty  years  of  age,  it 
was  no  sufficient  reason  in  itself  for  removing  him 
from  his  trust,  or  for  taking  the  property  out  of  his 
hands.  The  same  learned  Judge  also  declared  that 
it  was  not  the  intention  of  the  legislature  to  prohibit 
the  granting  of  letters  testamentary  to  any  executors 
except  such  as  are  possessed  of  property,  of  their 
own,  to  the  full  value  of  the  estate  which  the  testa- 
tor has  authorized  and  appointed  them  to  adminis- 
ter : or  that  an  executor  should  be  superseded  in  his 
trust,  or  required  to  find  security,  whenever  his  pro- 
perty was  reduced  below  that  of  the  deceased ; for 
that  such  a construction  of  the  statute  would  render 
it  almost  impossible  /or  a man  of  large  property  to 
select  an  executor  who  would  be  both  able  and 
willing  to  assume  the  execution  of  the  trust.  Ob- 
serving that  the  obvious  meaning  of  the  statute  was, 
that  an  executor  may  be  required  to  give  security, 
whenever  the  Surrogate  is  satisfied  that  his  conduct 
and  circumstances  in  other  respects  are  such  as  to 
render  it  doubtful  whether  the  property  will  be  safe 
in  his  hands,  to  be  disposed  of,  or  administered,  as 
directed  by  the  will. 


EXECUTORS  AND  ADMINISTRATORS. 


57 


CHAPTER  III. 

OF  MAKING  AN  INVENTORY  AND  COLLECTING 
THE  ASSETS. 

§ 105.  After  the  executor  or  administrator  has 
received  his  authority,  and  is  qualified  to  act,  he 
must  forthwith  proceed  to  execute  the  duties  of  his 
office.  The  first  duty  to  be  performed  by  either,  is 
to  make  an  inventory  of  the  goods  and  chattels  of 
the  intestate.  The  Revised  Statutes  require  that 
executors  or  administrators,  with  the  aid  of  apprais- 
ers appointed  for  that  purpose  by  the  Surrogate, 
shall,  within  a reasonable  time  after  qualifying,  make 
a true  and  perfect  inventory  of  the  property  of  the 
testator.  If  the  property  be  in  different  and  distant 
places,  two  or  more  inventories  may  be  made. 

§ 106.  The  following  property  is  to  be  deemed 
assets,  and  will  go  to  the  executors  or  administrators, 
to  be  applied  and  distributed  as  part  of  the  personal 
estate  of  their  testator  or  intestate,  and  must  be  in- 
cluded in  the  inventory  thereof : 

“ 1.  Leases  for  years  ; lands  held  by  the  deceased 
from  year  to  year ; and  estates  held  by  him  for  the 
life  of  another  person : 

“ 2.  The  interest  which  may  remain  in  the  de- 
ceased at  the  time  of  his  death,  in  a term  for  years, 
6 


58 


THE  LAW  OF 


after  the  expiration  of  any  estate  for  years  therein, 
granted  by  him  or  any  other  person ; 

“ 3.  The  interest  in  lands  devised  to  an  executor 
for  a term  of  years,  for  the  payment  of  debts : 

“ 4.  Things  annexed  to  the  freehold,  or  to  any 
building,  for  the  purpose  of  trade  or  manufacture, 
and  not  fixed  into  the  wall  of  a house,  so  as  to  be 
essential  to  its  support : 

“ 5.  The  crops  growing  on  the  land  of  the  de- 
ceased, at  the  time  of  his  death  : 

“6.  Every  kind  of  produce  raised  annually  by 
labor  and  cultivation,  excepting  grass  growing  and 
fruit  not  gathered  : _ 

“ 7.  Rent  reserved  to  the  deceased,  which  had 
accrued  at  the  time  of  his  death  : 

“ 8.  Debts  secured  by  mortgages,  bonds,  notes 
or  bills ; accounts,  money,  and  bank  bills,  or  other 
circulating  medium,  things  in  action,  and  stock  in 
any  company,  whether  incorporated  or  not : 

“9.  Goods,  wares,  merchandise,  utensils,  furni- 
ture, cattle,  provisions,  and  every  other  species  of 
personal  property  and  effects,  not  hereinafter  ex- 
cepted. 

§ 107.  Things  annexed  to  the  freehold,  or  to  any 
building,  do  not  go  to  the  executor,  but  will  descend 
with  the  freehold  to  the  heirs  or  devisees,  except 
such  fixtures  as  are  mentioned  in  the  fourth  sub- 
division of  the  last  section.  The  right  of  an  heir  to 


EXECUTORS  AND  ADMINISTRATORS. 


59 


any  property  not  enumerated  in  the  preceding  sec- 
tion, which  by  the  common  law  would  descend  to 
him,  are  not  impaired  by  the  general  terms  of  that 
section. 

§ 108.  Where  a man,  having  a family,  dies,  leaving 
a widow,  or  a minor  child  or  children,  the  following 
articles  are  not  to  be  deemed  assets,  but  must  be  in- 
cluded and  stated  in  the  inventory  of  the  estate 
without  being  appraised : 

1.  All  spinning  wheels,  weaving  looms,  and  stoves, 
put  up  or  kept  for  use  by  his  family : 

2.  The  family  bible,  family  pictures,  and  school 
books  used  by  or  in  the  family  of  such  deceased 
person ; and  books  not  exceeding  in  value  fifty  dol- 
lars, which  were  kept  and  used  as  part  of  the  family 
library,  before  the  decease  of  such  person  : 

3.  All  sheep,  to  the  number  of  ten,  with  their 
fleeces,  and  the  yarn  and  cloth  manufactured  from 
the  same ; one  cow ; two  swine,  and  the  pork  of 
such  swine : 

4.  All  necessary  wearing  apparel,  beds,  bedsteads 
and  bedding  ; necessary  cooking  utensils  ; the  cloth- 
ing of  the  family;  the  clothes  of  a widow,  and  her 
ornaments,  proper  for  her  station ; one  table,  six 
chairs,  six  knives  and  forks,  six  plates,  six  teacups 
and  saucers,  one  sugar-dish,  one  milkpot,  one  teapot, 
and  six  spoons. 

§ 109.  These  articles  are  to  remain  in  the  posses- 


60 


THE  LAW  OF 


sion  of  the  widow,  if  there  be  one,  during  the  time 
she  shall  live  with,  and  provide  for  such  minor  child 
or  children.  When  she  shall  cease  so  to  do,  she  will 
be  allowed  to  retain  as  her  own,  her  wearing  appa- 
rel and  ornaments,  and  one  bed,  bedstead,  and  the 
bedding  for  the  same ; and  the  other  articles  so  ex- 
empted will  then  belong  to  such  minor  child  or 
children.  If  there  be  a wfidow,  and  no  such  minor 
child,  then  these  articles  will  belong  to  such  widow. 
If  the  widow  dies  before  the  inventory  is  made,  her 
next-of-kin  would  be  entitled  to  these  articles,  and 
the  husband’s  executors  or  administrators  would 
have  no  right  to  intermeddle  therewith,  as  she  be- 
came entitled  thereto  by  the  death  of  her  husband, 
and  her  title  became  vested  and  absolute  upon  his 
death. 

§ 110.  When  a man  having  a family  dies,  leaving 
a widow  or  minor  child  or  children,  there  shall  be 
inventoried  by  the  appraisers,  and  set  apart  for  the 
use  of  such  widow,  or  for  the  use  of  such  widow  and 
child  or  children,  or  for  the  use  of  such  child  or 
children,  in  the  manner  before  prescribed,  necessary 
household  furniture,  provisions,  or  other  personal 
property,  in  the  discretion  of  said  appraisers,  to  the 
value  of  not  exceeding  one  hundred  and  fifty  dollars, 
in  addition  to  the  articles  of  personal  property  we 
have  previously  stated  to  be  exempt  from  appraisal. 

§111.  The  inventory  must  contain  a particular 


EXECUTORS  AND  ADMINISTRATORS. 


61 


statement  of  all  bonds,  mortgages,  notes  and  other 
securities  for  the  payment  of  money  belonging  to  the 
deceased,  which  are  known  to  such  executor  or  ad- 
ministrator ; specifying  the  name  of  the  debtor  in 
each  security,  the  date,  the  sum  originally  payable, 
the  endorsements  thereon,  if  any,  with  their  dates ; 
and  the  sum  which,  in  the  judgment  of  the  apprais- 
ers, may  be  collectible  on  each  security, 

§ 112.  The  inventory  must  also  contain  an  account 
of  all  moneys,  whether  in  specie,  bank  bills,  or  other 
circulating  medium,  belonging  to  the  deceased,  which 
shall  have  come  to  the  hands  of  the  executor  or  ad- 
ministrator ; and  if  none  shall  have  come  to  his 
hands,  the  fact  must  be  so  stated  in  the  inventory. 

§ 113.  Any  disinterested  person,  of  full  age,  and 
competent  to  transact  business,  may  be  appointed 
appraiser ; but  they  are  usually  appointed  from 
amongst  those  who  are  acquainted  with  the  family 
of  the  deceased,  and  live  in  the  neighborhood.  The 
executor  or  administrator  usually  applies  to  the 
Surrogate  at  the  time  of  receiving  letters  testamen- 
tary or  of  administration,  for  the  appointment  of  ap- 
praisers ; and  no  notice  of  such  application  need  be 
given.  Should  the  executor  or  administrator  neglect 
to  apply  for  the  appointment  of  appraisers,  the  Sur- 
rogate would  compel  him  to  do  so,  and  require  him 
to  return  an  inventory. 

§ 114.  Notice,  in  writing,  of  the  time  and  place 


62 


THE  LAW  OF 


of  making  the  appraisal,  must  be  served  five  days 
previous  thereto,  on  the  legatees  and  next-of-kin  re- 
siding in  the  county  where  the  property  shall  be, 
and  a copy  of  such  notice  must  also  be  posted  in 
three  of  the  most  public  places  of  the  town,  where 
the  property  shall  be. 

§ 115.  The  appraisers  must  take  and  subscribe  an 
oath,  to  be  inserted  in  the  inventory,  before  any  offi- 
cer authorized  to  administer  an  oath,  (amongst  which 
justices  of  the  peace  are"  now  included,)  that  they 
will  truly,  honestly  and  impartially  appraise  the 
personal  property,  which  shall  be  exhibited  to  them, 
according  to  the  best  of  their  knowledge  and  ability. 

§ 116.  The  property  to  be  appraised  must  be  ex- 
hibited to,  and  personally  examined  and  valued  by 
the  appraisers ; and  the  executor  or  administrator 
has  no  right  to  interfere  with  them  in  the  discharge 
of  this  duty.  The  appraisers  must,  in  the  presence 
of  such  of  the  next-of-kin,  legatees  or  creditors  of 
the  deceased  as  may  choose  to  attend,  proceed  to 
estimate  and  appraise  the  property  which  shall  be 
exhibited  to  them ; and  in  doing  this  they  must  set 
down  each  article  separately,  with  the  value  thereof 
in  dollars  and  cents,  distinctly  in  figures,  opposite  to 
the  articles  respectively. 

§ 117.  Upon  the  completion  of  the  inventory,  du- 
plicates must  be  made  and  signed  by  the  appraisers  ; 
one  of  them  is  to  be  retained  by  the  executor  or  ad- 


EXECUTORS  AND  ADMINISTRATORS. 


63 


ministrator,  and  the  other  returned  to  the  Surrogate,, 
within  three  months  from  the  date  of  such  letters*. 
Although  some  of  the  personal  property  should  be 
specifically  bequeathed  by  the  testator,  yet  such 
property  must  be  included  in  the  inventory,  and  ap- 
praised, as  it  may  become  necessary  to  sell  such 
articles  for  the  payment  of  debts. 

§ 118.'  The  inventory  is  intended  for  the  benefit 
of  the  creditors  and  next-of-kin,  and  the  executor  or 
administrator  will  be  obliged  to  account  for  the  pro- 
perty mentioned  in  it.  He  will  also  be  obliged  to 
show  good  cause  for  not  collecting  the  debts  that 
are  mentioned  to  be  due,  unless  he  has  taken  the 
precaution  to  note  them  in  the  inventory  as  despe- 
rate. He  is  bound  also  to  include  the  value  of  the 
stock  in  trade,  effects  and  credits  of  a firm  in  which 
the  deceased  was  a partner,  so  far  as  his  interest 
therein  can  be  ascertained,  from  the  books  and  ac- 
counts of  the  partnership. 

§ 119.  But  the  law  will  only  require  an  inventory 
of  all  that  he  died  possessed  of,  and  it  cannot  there- 
fore call  for  an  account  of  the  subsequent  profits  in 
his  business.  Nor  will  it  require  an  inventory  of 
personal  estate  situated  in  another  state,  or  in  a 
foreign  country  ; for  foreign  estates  are  out  of  the- 
jurisdiction  and  cognizance  of  the  Surrogate.  But  if 
personal  property  belonging  to  the  estate  situate* 
abroad,  or  the  avails  thereof,  afterwards  comes 


<64 


THE  LAW  OF 


within  the  state,  the  administrator  should  then  file  a 
further  inventory,  or  account  for  the  same. 

§ 120.  If  the  inventory  is  not  made  and  returned 
to  the  Surrogate  within  three  months  from  the  time 
of  granting  letters  testamentary,  or  of  administra- 
tion, or  within  such  further  time,  not  exceeding  four 
months,  as  the  Surrogate,  shall,  for  reasonable  cause 
allow,  the  Surrogate  is  required  to  issue  a sum- 
mons, requiring  such  executor  or  administrator,  at  a 
short  day,  to  be  specified  in  such  summons,  to  ap- 
pear before  him  and  return  an  inventory,  according 
to  law,  or  show  cause  why  an  attachment  should  not 
issue  against  him. 

§ 121.  If,  after  the  personal  service  of  such  sum- 
mons, the  executor  or  administrator  should  not,  by 
the  day  specified  therein,  return  an  inventory,  on 
oath,  or  obtain  further  time  to  return  the  same,  the 
Surrogate  is  required  to  issue  an  attachment  against 
him,  and  commit  him  to  the  common  jail  of  the 
county,  there  to  remain  until  he  shall  return  such  in- 
ventory. 

§ 122.  If  the  summons  cannot  be  served  person- 
ally, by  reason  of  the  executor  or  administrator  ab- 
sconding or  concealing  himself : or  if,  after  being 
committed  to  prison,  the  executor  or  administrator 
neglects,  for  thirty  days,  to  make  and  return  an  inven- 
tory, the  Surrogate  may  revoke  the  letters  testamen- 
tary or  of  administration,  and  grant  letters  to  some 


EXECUTORS  AND  ADMINISTRATORS. 


65 


other  person  entitled  thereto,  in  the  same  manner 
as  if  no  previous  letters  had  been  granted  ; where- 
upon the  executor  or  administrator  so  refusing  to 
return  the  inventory  ceases  to  have  any  further  author- 
ity in  relation  to  the  estate.  The  sureties  of  the  execu- 
tor or  administrator,  are  liable  for  all  damages  sus- 
tained by  the  estate  of  the  deceased,  by  the  acts  or 
omissions  of  the  executor  or  administrator,  to  the 
full  value  of  all  the  property  of  the  deceased,  re- 
ceived, and  not  duly  administered,  by  such  execu- 
tor or  administrator.  And  the  moneys  received  of 
such  sureties  will  be  assets  in  the  hands  of  the  per- 
son to  whom  such  subsequent  letters  shall  be  issued. 
Such  executor  or  administrator  will  be  released  from 
prison  by  the  Surrogate,  or  a Justice  of  the  Su- 
preme Court,  on  his  delivering,  upon  oath,  all  the 
property  of  the  deceased  under  his  control,  to  such 
person  as  shall  be  authorized  by  the  Surrogate  to 
receive  the  same. 

§ 123.  Where  there  is  more  than  one  executor 
or  administrator,  either  may  make  and  return  the  in- 
ventory, in  case  the  other  or  others  refuse ; and  in 
such  case,  those  refusing  have  no  authority  to  inter- 
fere in  any  manner  with  the  property  of  the  de- 
ceased, until  they  do  join  in  the  inventor}^.  In  case 
other  property  shall  come  to  the  hands  of  the  exec- 
utor or  administrator,  after  the  return  of  the  inven- 
tory ; or  in  case  they  find  any  property  which  has 


<36 


THE  LAW  OF 


not  been  included  in  the  inventory  returned,  it  is  their 
duty  to  have  it  appraised  and  inventoried,  in  a sub- 
sequent inventory,  in  the  same  manner  as  the  pro- 
perty originally  included  in  the  first  inventory. 

§ 124.  The  next  duty  of  the  executor  or  adminis- 
trator is  to  collect  all  the  goods,  chattels,  and  effects 
of  the  deceased.  For  this  purpose  the  law  invests 
him  with  large  powers  and  authority.  As  the  re- 
presentative of  the  deceased,  he  has  the  same  right 
of  property  in  the  effects  as  the  deceased  had  while 
livino*  • he  has  also  the  same  remedies  to  recover 

O 7 

them.  Within  a convenient  time  after  the  grant  of 
administration,  or  the  death  of  the  testator,  in  the 
oase  of  a will,  he  has  a right  to  enter  the  house  in 
order  to  remove  the  goods,  provided  he  does  so 
without  violence,  as  if  the  door  be  open,  or  at  least 
the  key  be  in  the  door. 

§ 125.  But  although  the  door  of  entrance  into 
the  hall  or  parlor  be  open,  he  cannot  therefore  jus- 
tify  forcing  the  door  of  any  chamber  to  take  the 
goods  contained  in  it,  and  he  is  only  empowered  to 
take  those  which  are  in  such  rooms  as  are  unlocked, 
or  in  the  door  of  which  he  shall  find  the  key.  He 
has  also  the  right  to  take  deeds  and  other  writings 
relative  to  the  personal  estate  out  of  a chest  in  the 
house,  if  it  be  unlocked,  or  the  key  is  in  it ; but  he  has 
no  right  to  break  open  even  a chest.  If  he  cannot 


EXECUTORS  AND  ADMINISTRATORS. 


67 


take  possession  of  the  effects  without  force,  he  must 
desist,  and  resort  to  an  action  at  law. 

§ 126.  He  may  maintain  all  such  actions  as  the 
deceased  might  have  done  while  living,  except  for 
libel  and  such  other  injuries  to  the  person  of  the  de- 
ceased as  are  merely  personal  and  die  with  him.  It 
is  incumbent  on  him  to  avail  himself  of  his  powers 
with  all  reasonable  diligence,  in  the  discovery  and 
collection  of  the  effects  of  the  deceased ; and  if  by 
improperly  delaying  to  bring  an  action  he  has  enabled 
a debtor  of  the  estate  to  avail  himself  of  the  statute 
of  limitations,  he  will  be  personally  liable. 

§ 127.  If  any  of  the  property  should  be  wasted 
or  lost  through  his  carelessness  or  inattention,  or  if 
the  debts  are  not  collected  within  a reasonable  time  af- 
ter letters  testamentary  or  of  administration  are  grant- 
ed, either  by  personal  application  or  suit,  whether 
the  debts  may  have  been  lost  by  such  delay  or  not, 
and  although  no  improper  motives  are  imputable  to 
the  executor  or  administrator,  the  law  holds  him 
personally  responsible  to  creditors,  or  to  those  enti- 
tled to  the  proceeds  of  the  estate,  in  the  order  of 
distribution.  And  there  is  nothing  hard  or  unjust 
in  this  principle,  since  it  is  only  exacting  of  those  re- 
presentatives that  diligence  and  attention  to  the  bu- 
siness of  others  which  every  discreet  man  would 
bestow  upon  his  own,  and  which  they  have  volunta- 
rily taken  upon  themselves. 


68 


THE  LAW  OF 


§ 128.  It  is  decided  also  in  New-York  that  an  ad- 
ministrator is  bound  to  take  measures  for  the  collec- 
tion of  a demand  due  the  estate  he  represents,  from 
a debtor  residing  in  another  state,  either  by  obtain- 
ing letters  of  administration  himself  or  employing 
an  agent  there  for  the  purpose,  and  instituting 
proceedings  to  recover  the  debt  if  collectible. 

§ 129.  If  the  deceased  died  possessed  of  public 
or  corporate  funds  or  stocks,  the  executor  or  admin- 
istrator is  entitled  to  have  them  transferred  to  him- 
self, or  to  such  other  person  as  he  shall  appoint,  on 
presenting  to  the  government  officers,  or  to  the  cor- 
poration, a certificate  of  the  Surrogate  that  letters 
have  been  granted  to  him.  And  the  public  officer, 
or  the  bank  or  other  company,  has  no  right  to  inquire 
into  the  disposition  to  be  made  of  the  property,  but 
is  bound  to  transfer  the  stock  on  the  mere  pro- 
duction of  the  proper  evidence  of  the  due  appoint- 
ment and  qualification  of  the  executor  or  administra- 
tor ; and  if  there  be  a refusal,  the  public  officer  or 
the  institution  will  become  liable  for  any  damages 
that  may  be  sustained. 

§ 130.  He  must  sell  so  much  of  the  personal  pro- 
perty as  may  be  necessary  for  the  payment  of  debts 
and  legacies,  provided  there  is  not  sufficient  collected 
from  the  books,  accounts  and  debts,  and  beginning 
with  articles  not  required  for  immediate  use,  nor  spe- 
cifically devised.  But  in  case  he  shall  discover 


EXECUTORS  AND  ADMINISTRATORS. 


69 


that  the  debts  against  the  deceased,  and  the  legacies 
bequeathed  by  him,  cannot  be  paid  and  satisfied 
without  the  sale  of  his  personal  property,  the  same, 
so  far  as  may  be  necessary  for  the  payment  of  such 
debts  and  legacies,  shall  be  sold. 

§ 131.  As  a general  rule  he  must  convert  the  as- 
sets into  cash  by  a public  sale  ; but  unless  a sale  of 
such  assets  is  necessary  to  pay  debts  and  legacies,  he 
must  reserve  the  property  specifically  bequeathed  to 
be  divided  between  legatees  and  distributees.  In 
the  State  of  New- York  he  is  allowed,  except  in  the 
city  of  New-York,  to  sell  on  credit,  not  exceeding  one 
year,  with  approved  security,  and  he  will  be  exempt- 
ed from  personal  responsibility  for  losses  if  he  acts 
in  good  faith  and  with  ordinary  prudence. 

§ 132.  In  making  sales,  such  of  the  articles  as  are 
not  necessary  for  the  support  and  subsistence  of  the 
family  of  the  deceased,  or  as  are  not  specifically  be- 
queathed, shall  be  first  sold ; and  articles  so  be- 
queathed, shall  not  be  sold,  until  the  residue  of  the 
personal  estate  has  been  applied  to  the  payment  of 
bebts. 

§ 133.  He  has  an  absolute  power  of  disposal  over 
the  whole  personal  effects  of  the  deceased,  and  if 
therefore  he  sells  a thing  belonging  to  the  estate  he 
represents,  although  it  may  be  specifically  bequeath- 
ed, no  creditor  or  legatee  can  follow  it  into  the  hands 
of  the  person  to  whom  it  has  been  sold.  The  power 


10 


THE  LAW  OF 


of  an  executor  or  administrator  to  dispose  of  a chat- 
tel specifically  bequeathed  seems  to  have  been  for- 
merly questioned,  but  succeeding  cases-  appear  to 
have  established  it  beyond  a doubt.  In  many  in- 
stances he  must  sell,  in  order  to  perform  his  duty  in 
paying  debts,  and  no  one  would  deal  with  an  execu- 
tor or  administrator  if  liable  to  be  afterwards  called  to 
an  account.  The  person  proposing  to  purchase  need, 
not  inquire  whether  the  debts  cannot  be  paid  with- 
out a sale,  or  whether  the  residue  of  the  property 
has  been  sold  before,  but  he  may  take  it  for  granted 
that  the  party  with  whom  he  is  dealing  is  acting  ac- 
cording to  the  directions  and  provisions  of  the  law. 

§ 134.  As  an  executor  may  absolutely  dispose  of 
the  testator’s  effects  for  the  general  purposes  of  the 
will,  there  seems  to  be  no  good  reason  why,  in  the 
exercise  of  a sound  discretion,  and  supposing  the 
terms  of  the  will  do  not  absolutely  require  a sale,  he 
may  not  raise  the  money  required  by  a partial  sale, 
or  mortgage  of  the  assets.  Such  a mortgage  m£iy 
be  either  by  a deposit  in  pledge,  or  by  an  actual  as- 
signment. 

§ 135.  The  validity  of  all  transfers  of  property, 
however,  by  an  executor  or  administrator,  depends 
upon  the  good  faith  of  the  transaction  ; for  if  there 
be  any  collusion  or  bad  faith  between  the  purchaser 
or  mortgagee  and  the  personal  representative,  the 
seeming  purchaser  or  pawnee  will  be  liable  to  the 


EXECUTORS  AND  ADMINISTRATORS. 


7l 


creditors  or  legatees  to  the  full  value.  And  when- 
ever the  person  to  whom  an  executor  collusively  passes 
the  property  knows  that  the  executor  is  acting  in 
violation  of  his  trust,  and  in  fraud  of  the  persons  in- 
terested in  the  due  administration  of  the  assets,  the 
fraud  vitiates  the  transaction,  and  the  attempt  to 
transfer  the  property  will  fail.  But  in  all  such  cases 
where  a creditor  or  legatee  is  entitled  to  follow  the 
assets,  he  must  enforce  his  right  within  a reasonable 
time,  or  he  will  be  barred  by  his  acquiescence. 

§ 136.  An  executor  or  administrator  ought  not  to 
sell  any  article,  at  private  sale,  for  a less  sum  than 
it  was  appraised  at,  unless  he  is  prepared  to  show 
that  the  price  he  obtained  was  the  full  value  of  it, 
and  that  it  was  over-valued  in  the  inventory.  Nor 
is  he  entirely  free  from  risk  in  selling  at  the  appraised 
value,  for  he  is  bound  to  obtain  its  full  value  at  the 
time  he  sells,  whatever  may  have  been  the  value  at 
which  it  was  appraised.  The  appraised  value  is  but 
prima  facie  value,  subject  to  be  varied  by  proof  on 
either  side ; hence  it  is  more  safe  and  prudent  for 
executors  and  administrators  to  sell  in  all  cases  at 
public  auction,  after  due  public  notice  of  the  time  and 
place  of  sale. 


72 


THE  LAW  OF 


CHAPTER  IV. 

OF  PAYING  DEBTS  AND  LEGACIES  AND  DISTRIBUTING 
THE  ASSETS. 

§ 137.  Care  is  especially  required  in  administering 
the  goods  of  the  deceased,  whether  testator  or  intes- 
tate, particularly  in  the  payment  of  debts ; the  whole 
of  which  must  be  satisfied  before  the  payment  of  any 
legacies.  The  debts  must  be  paid  according  to  legal 
priority ; for,  if  an  administrator  or  executor  departs 
from  the  routine  laid  down  by  the  statute,  and  there 
proves  to  be  a deficiency  of  the  assets  of  the  deceased, 
his  representative  will  have  to  pay  those  which  he 
has  wrongly  passed  over  out  of  his  own  property. 

§ 138.  The  funeral  charges,  and  the  expenses  of 
the  last  sickness,  including  the  physician’s  bill,  with 
the  expenses  of  proving  the  will,  and  all  the  other 
costs  which  are  incidental  to  putting  himself  into  the 
position  of  the  legal  representative  of  the  deceased, 
must  be  first  paid ; and,  of  these,  the  costs  of  suits 
incurred  in  administering  the  estate  will  be  consid- 
ered a part. 

§ 139.  Before  proceeding  to  pay  debts  and  lega- 
cies, however,  if  there  be  any  doubt  of  the  sufficiency 
of  the  estate  to  pay  in  full,  a prudent  executor  or 
administrator  will  advertise  for  claims  against  the 


EXECUTORS  AND  ADMINISTRATORS. 


73 


estate.  The  statute  provides  that  any  executor  or 
administrator,  at  any  time,  at  least  six  months  after 
the  granting  of  the  letters  testamentary  or  of  admin- 
istration, may  insert  a notice,  once  in  each  week  for 
six  months,  in  a newspaper  printed  in  the  county, 
and  in  so  many  other  newspapers  as  the  Surrogate 
may  deem  most  likely  to  give  notice  to  the  creditors 
of  the  deceased,  requiring  all  persons  having  claims 
against  the  deceased  to  exhibit  the  same,  with  the 
vouchers  thereof,  to  such  executor  or  administrator, 
at  a place  to  be  specified  in  the  notice,  at  or  before 
the  day  therein  named,  which  shall  be  at  least  six 
months  from  the  day  of  the  first  publication  of  such 
notice.  Application  must  of  course  be  made  to  the 
Surrogate  for  authority  to  make  such  publication. 

§ 140.  Opon  any  claim  being  presented  against 
the  estate  of  a deceased  person,  the  executor  or  ad- 
ministrator may  require  satisfactory  vouchers  in  sup- 
port thereof,  and  also  the  affidavit  of  the  claimant 
that  such  claim  is  justly  due;  that  no  payments 
have  been  made  thereon,  and  that  there  are  no  off- 
sets against  the  same  to  the  knowledge  of  such 
claimant;  which  oath  may  be  taken  before  any 
Justice  of  the  Peace,  or  other  officer  authorized  to 
administer  oaths.  In  presenting  a claim  to  the  ex- 
ecutor or  administrator,  it  is  not  necessary  that  a 
personal  interview  should  take  place  between  the 
parties  ; but  it  may  be  presented  by  letter,  or  in  any 


74 


THE  LAW  OF 


other  way  which  deals  fairly  with  the  executors,  and 
the  interests  they  represent.  Nor  is  the  creditor 
bound  to  exhibit  the  evidences  of  his  claim,  or  make 
oath  of  the  justice  thereof,  unless  required  to  do  so 
by  the  executors  ; but  it  is  not  sufficient  to  present 
the  claim  to  the  executors’  attorney. 

§ 141.  If  the  executor  or  administrator  doubt  the 
justice  of  any  claim  presented  to  him,  he  may  enter 
into  an  agreement  in  writing,  with  the  claimant,  to 
refer  the  matter  in  controversy  to  three  disinterested 
persons,  to  be  approved  by  the  Surrogate ; and 
upon  filing  such  agreement  and  approval  of  the 
Surrogate  in  the  office  of  a clerk  of  the  Supreme 
Court,  or  of  the  clerk  of  the  Court  of  Common  Pleas 
of  the  county  in  which  the  parties,  or  either  of  them 
reside,  a rule  shall  be  entered  by  such  clerk,  either 
in  vacation  or  in  term,  referring  the  matter  in  contro- 
versy to  the  persons  so  selected. 

§ 142.  The  referees  will  thereupon  proceed  to 
hear  and  determine  the  matter,  and  make  their  re- 
port thereon  to  the  court  in  which  the  rule  for  their 
appointment  shall  have  been  entered.  The  same 
proceedings  are  to  be  had  in  all  respects ; the  refe- 
rees have  the  same  powers,  are  entitled  to  the  same 
compensation,  and  subject  to  the  same  control  as  if 
the  reference  had  been  made  in  an  action  in  which 
such  court  might  by  law  direct  a reference  ; and  the 
court  may  set  aside  the  report  of  the  referees,  or  ap- 


EXECUTORS  AND  ADMINISTRATORS. 


75 


point  others  in  their  places,  and  may  confirm  such 
report,  and  adjudge  costs,  as  in  actions  against  ex- 
ecutors ; and  the  judgment  of  the  court  thereupon 
shall  be  valid  and  effectual  in  all  respects,  as  if  the 
same  had  been  rendered  in  a suit  commenced  by  the 
ordinary  process. 

§ 143.  If  a claim  against  the  estate  of  any  de- 
ceased person  be  exhibited  to  the  executor  or  admin- 
istrator, and  be  disputed  or  rejected  by  him,  and  the 
same  shall  not  have  been  referred,  the  claimant  must, 
within  six  months  after  such  dispute  or  rejection,  if 
the  debt,  or  any  part  thereof  be  then  due,  or  within 
six  months  after  some  part  thereof  shall  have  become 
due,  commence  a suit  for  the  recovery  thereof,  or  be 
forever  barred  from  maintaining  any  action  thereon ; 
and  no  action  can  be  maintained  thereon  after  the 
said  period,  by  any  other  person  deriving  title  thereto 
from  such  claimant ; and  any  executor  or  adminis- 
trator may,  on  the  trial  of  any  action  founded  upon 
such  demand,  give  in  evidence,  in  bar  thereof,  under 
a notice  annexed  to  the  general  issue,  the  facts  of 
such  refusal  and  neglect  to  commence  a suit. 

§ 144.  In  case  any  suit  shall  be  brought  upon  a 
claim,  which  shall  not  have  been  presented  to  the  ex- 
ecutor or  administrator  of  a deceased  person,  within 
six  months  from  the  first  publication  of  such  notice, 
as  directed  by  the  statute,  such  executor  or  ad- 
ministrator will  not  be  chargeable  for  any  assets  or 


16 


THE  LAW  OF 


moneys  that  he  may  have  paid  in  satisfaction  of  any 
claims  of  an  inferior  degree,  or  of  any  legacies,  or  in 
making  distribution  to  the  next-of-kin,  before  such 
suit  was  commenced,  but  may  prove  such  notice, 
published  by  him  as  aforesaid,  and  such  payment 
and  distribution,  in  support  of  his  plea  of  having  ad- 
ministered the  estate  of  the  deceased. 

§ 145.  In  such  action  the  plaintiff  will  be  entitled 
to  recover  only  to  the  amount  of  such  assets  as  shall 
have  been  in  the  hands  of  such  executor  or  adminis- 
trator, at  the  time  of  the  commencement  of  the  suit; 
or  he  may  take  judgment  for  the  amount  of  his 
claim,  or  any  part  thereof,  to  be  levied  and  collected 
of  assets  which  shall  thereafter  come  into  the  hands 
of  such  executor  or  administrator. 

§ 146.  In  such  suit  no  costs  are  to  be  recovered 
against  the  defendants ; nor  shall  any  costs  be  re- 
covered in  any  suit  at  law,  against  any  executors  or 
administrators,  to  be  levied  of  their  property,  or  of 
the  property  of  the  deceased,  unless  it  appear  that 
the  demand  on  which  the  action  was  founded  was 
presented  within  the  time  aforesaid,  and  that  its 
payment  was  unreasonably  resisted  or  neglected,  or 
that  the  defendant  refused  to  refer  the  same  pur- 
suant to  the  preceding  provisions ; in  which  cases 
the  court  may  direct  such  costs  to  be  levied  of  the 
property  of  the  defendants,  or  of  the  deceased,  as 
:shall  be  just,  having  reference  to  the  facts  that  ap- 


EXECUTORS  AND  ADMINISTRATORS. 


77 


peared  on  the  trial.  If  the  action  be  brought  in  the 
Supreme  Court,  such  facts  shall  be  certified  by  the 
judge  before  whom  the  trial  shall  have  been  had. 

§ 147.  But  any  creditor  who  may  have  neglected 
to  present  his  claims,  may,  notwithstanding,  recover 
the  same,  in  the  manner  prescribed  by  law,  from  the 
next-of-kin  and  legatees  of  the  deceased,  to  whom 
any  assets  shall  have  been  paid  or  distributed. 

§ 148.  The  Statute  further  provides  that  every 
executor  and  administrator  shall  proceed  with  dili- 
gence to  pay  the  debts  of  the  deceased,  and  shall 
pay  the  same  in  the  following  order  : 

1.  Debts  entitled  to  a preference  under  the  laws 
of  the  United  States  : 

2.  Taxes  assessed  upon  the  estate  of  the  deceased 
previous  to  his  death  : 

3.  Judgments  docketted  and  decrees  enrolled 
against  the  deceased,  according  to  the  priority  there- 
of respectively  : 

4.  All  recognizances,  bonds,  sealed  instruments, 
notes,  bills,  and  unliquidated  demands  and  ac- 
counts. 

§ 149.  As  to  debts  due  to  the  United  States,  the 
laws  of  Congress  establish  a priority  of  payment 
upon  all  debts  due,  or  to  become  due  to  them,  either 
by  reason  of  any  bond  given  for  the  payment  of  duties, 
or  for  any  other  cause,  if  the  debtor  become  insolv- 
ent, or  his  estate  after  his  decease  shall  prove  to  be 


78 


THE  LAW  OF 


insufficient  for  the  payment  of  all  his  debts.  This 
priority  extends  as  well  to  debts  by  bonds  for  duties, 
which  are  payable  after  the  insolvency  or  death  of 
the  obligor,  as  to  those  actually  payable  or  due  at 
the  period  thereof ; and  it  makes  an  executor  or  ad- 
ministrator answerable  in  his  own  person  and  estate, 
if  he  shall  pay  other  debts  before  paying  debts  due 
to  the  United  States. 

§ 150.  The  provisions  of  the  act  of  Congress 
however  do  not  extend  to,  nor  will  they  in  any  man- 
ner invalidate  or  prejudice  a bona  fide  conveyance  of 
the  debtor  made  to  another  person  in  the  ordinary 
course  of  business,  nor  to  a mortgage  given  by  a 
debtor  to  secure  a debt,  nor  to  a case  where  the  pro- 
perty had  been  seized  under  an  execution  before  the 
right  of  preference  has  accrued  to  the  United  States ; 
nor  does  it  affect  any  other  lien,  general  or  specific, 
existing  wThen  the  event  took  place  which  gave  the 
United  States  a claim  to  priority. 

§ 151.  Judgments  are  entitled  to  be  paid  out  of  the 
personal  estate  of  the  deceased,  according  to  the  pri- 
ofity  in  point  of  time  of  docketting  the  same,  or  of  en- 
rolling decrees,  without  reference  to  any  supposed  lien 
of  the  judgment  or  decree  upon  his  real  estate,  and 
without  regard  to  the  fact  that  some  of  them  may 
have  been  perfected  more  than  ten  years  previous 
to  his  death,  and  others  within  that  period ; and 
the  statute  differs  fiom  the  common  law  in  this 


EXECUTORS  AND  ADMINISTRATORS. 


79 


respect,  that  by  such  law,  one  judgment  had  no  pre- 
ference over  another  in  payment  out  of  the  personal 
estate  of  the  deceased,  provided  both  were  docketted 
at  the  time  of  his  death. 

§ 152.  No  preference  is  to  be  given  in  the  pay- 
ment of  any  debt,  over  other  debts  of  the  same  class, 
except  those  specified  in  the  third  class ; and  in  case 
there  shall  prove  to  be  a deficiency  of  assets,  the 
debts  are  to  be  paid  rateably.  Nor  will  a debt  due 
and  payable  be  entitled  to  preference  over  debts  not 
due ; and  the  commencement  of  a suit  for  the  re- 
covery of  any  debt,  or  the  obtaining  a judgment 
thereon  against  the  executor  or  administrator,  will 
not  entitle  such  debt  to  any  preference  over  others 
of  the  same  class. 

§ 153.  Debts  not  due  may  be  paid,  by  an  execu- 
tor or  administrator,  according  to  the  class  to  which 
they  may  belong,  after  deducting  a rebate  of  legal 
interest  upon  the  sum  paid,  for  the  term  unexpired. 

§ 154.  Preference  may  be  given  by  the  Surrogate 
to  rents  due  or  accruing  upon  leases  held  by  the 
testator  or  intestate,  at  the  time  of  his  death,  over 
debts  of  the  fourth  class,  whenever  it  shall  be  made 
to  appear  to  his  satisfaction  that  such  preference 
will  benefit  the  estate  of  such  testator  or  intestate. 

§ 155.  If  the  deceased  owned  any  leases,  and  the 
executor  or  administrator  is  of  opinion  that  it  will 
benefit  the  estate  to  retain  them,  and  yet  doubts  the 


80 


THE  LAW  OF 


sufficiency  of  the  estate  to  pay  all  the  debts,  he 
should  apply  to  the  Surrogate  for  an  order  giving 
preference  to  the  payment  of  the  rents  on  such 
leases.  The  circumstances  which  justify  the  giving 
of  such  preference  must  be  set  forth  in  the  applica- 
tion, and  the  Surrogate  must  be  entirely  satisfied 
that  the  preference  asked  for  will  benefit  the  estate, 
before  he  will  grant  such  an  order. 

§ 156.  No  part  of  the  property  of  the  deceased 
can  be  retained  by  an  executor  or  administrator,  in 
satisfaction  of  his  own  debt  or  claim,  until  it  shall 
have  been  proved  to,  and  allowed  by,  the  Surrogate; 
and  such  debt  or  claim  shall  not  be  entitled  to  any 
preference  over  others  of  the  same  class.  And  to 
authorize  an  executor  to  retain  for  a debt  due  to  him- 
self from  the  estate  of  the  testator,  he  must,  in  ad- 
dition to  the  usual  proof,  swear  to  the  existence  of 
the  indebtedness  after  allowing  all  payments  and  off- 
sets ; and  he  will  not  be  allowed  to  prove  it  on  his 
own  oath  only,  but  he  must  produce  to  the  Surro- 
gate legal  evidence  of  the  existence  of  the  debt,  un- 
less the  same  is  admitted  by  those  who  are  interested 
in  the  estate. 

§ 157.  If  an  executor  or  administrator  unreason- 
ably refuses  to  pay  a debt  that  is  manifestly  just  and 
legal,  and  the  claimant  makes  the  usual  affidavit,  he 
will  render  himself  personally  liable  for  the  costs 
that  accrue  upon  a prosecution  thereof.  He  is  not 


EXECUTORS  AND  ADMINISTRATORS. 


81 


bound  to  plead  the  statute  of  limitations  to  an  action 
brought  against  him  to  recover  a debt  claimed  to  be 
due,  nor  will  a court  of  equity  compel  him  to  do  so. 

§ 158.  Payment  of  debts  may  be  decreed  by  the 
Surrogate,  at  any  time,  after  six  months  has  elapsed 
from  the  granting  of  letters  testamentary  or  of  ad- 
ministration ; and  payment  of  legacies  or  distributive 
shares,  may  be  decreed  by  him  at  any  time  after 
one  year  has  elapsed,  from  the  granting  of  letters 
testamentary,  or  of  administration. 

§ 159.  In  the  payment  of  debts,  the  Surrogate 
will  marshall  the  assets  in  the  following  order : — 
1.  The  personal  estate,  with  the  exception  of  spe- 
cific bequests,  or  such  as  is  exempted.  2.  The  real 
estate,  if  any,  appropriated  by  the  will  as  a fund  for 
the  payment  of  debts.  3.  The  descended  estate, 
whether  acquired  since  the  making  of  the  will  or 
not.  4.  The  lands  specifically  devised,  although 
they  be  generally  charged  with  the  payment  of 
debts,  but  not  specifically. 

§ 160.  Where  a creditor  recovers  judgment 
against  the  executor  or  administrator,  after  a trial  at 
law  upon  the  merits,  he  may,  at  any  time  thereafter, 
apply  to  the  Surrogate  who  granted  the  letters  tes- 
tamentary or  of  administration,  for  an  order  against 
such  executor  or  administrator,  to  show  cause  why 
an  execution  should  not  issue  upon  the  judgment. 

§ 161.  The  Surrogate  is  then  required  to  examine 
8 


82 


THE  LAW  OF 


into  the  matter,  and  if  upon  the  account  being  ren- 
dered and  settled  he  finds  that  such  executor  or  ad- 
ministrator has  sufficient  assets  in  his  hands,  properly 
applicable  to  the  payment  of  such  judgment,  in  whole 
or  in  part,  he  will  order  that  execution  issue  for  the 
amount  so  applicable.  He  will  however  always 
leave  a sufficient  sum  in  the  hands  of  the  executor 
or  administrator  to  meet  contingencies  and  future 
expenses  of  the  administration. 

§ 162.  Such  an  order  is  declared  to  be  conclusive 
evidence  that  there  are  sufficient  assets  in  the  hands 
of  the  executor  or  administrator  to  satisfy  the  amount 
for  which  such  execution  was  directed  to  be  issued. 
Ho  appeal  can  be  made  from  the  order  of  the  Sur- 
rogate, in  this  respect,  without  the  execution  of  a 
bond  by  the  party  appealing,  with  sufficient  sureties, 
to  be  approved  by  the  Surrogate,  conditioned  for 
the  payment  of  the  full  amount  so  directed  to  be 
levied,  with  interest  thereon,  in  case  the  order  be 
affirmed.  * 

§ 163.  If  the  whole  amount  due  upon  the  judg- 
ment shall  not  be  collected  on  the  execution  thus 
issued,  and  assets  shall  afterwards  come  into  the 
hands  of  the  executor  or  administrator,  the  Surrogate 
will  make  a further  order  for  issuing  another  execu- 
tion; and  so  on  from  time  to  time,  until  the  whole 
amount  due  shall  be  paid.  There  is  also  another 
section  of  the  statute  which  provides  for  executions 


EXECUTORS  AND  ADMINISTRATORS. 


83 


upon  all  judgments  against  executors  or  adminis- 
trators, whether  obtained  after  a trial  upon  the 
merits  or  otherwise.  But  no  execution  can  issue 
then  before  an  account  of  the  administration  has 
been  rendered  and  settled,  nor  without  an  order  of 
the  Surrogate  who  made  the  appointment.  And 
when  issued,  it  can  only  be  for  the  sum  that  appears 
on  the  settlement  of  the  account,  to  be  the  just  pro- 
portion of  the  assets,  applicable  to  such  judgment. 

§ 164.  It  may  be  well  to  observe  here,  that  the 
statute  declares  no  executor  or  administrator  shall 
be  chargeable  upon  any  special  promise  to  answer 
damages,  or  to  pay  the  debts  of  the  testator  or  in- 
testate out  of  his  own  estate,  unless  the  agreement 
for  that  purpose,  or  some  memorandum  or  note 
thereof,  be  in  writing,  and  signed  by  such  executor 
or  administrator,  or  by  some  other  person  by  him 
thereunto  specially  authorized. 

§ 165.  If  the  executor  or  administrator  is  satis- 
fied that  the  assets  are  insufficient  to  pay  all  the 
debts,  he  ought  to  pay  the  debts  which  are  entitled 
to  preference,  if  there  be  sufficient  for  that  purpose, 
and  retain  the  residue  of  the  assets  in  his  hands  to 
be  distributed  by  the  Surrogate  ; the  statute  gives 
him  no  authority  to  pay  a 'portion  of  any  of  the 
debts.  To  facilitate  such  a settlement,  any  creditor 
may  apply  to  the  Surrogate  who  appointed  such  ex- 
ecutor or  administrator,  at  any  time  after  six  months 


84 


THE  LAW  OF 


shall  have  elapsed  from  the  granting  of  the  letters 
testamentary  or  of  administration,  for  a decree  di- 
recting payment  of  his  debt  or  a proportional  part 
thereof. 

§ 166.  So,  also,  after  a year  has  elapsed  from  the 
granting  of  letters  testamentary  or  of  administration, 
any  legatee  or  relative  entitled  to  a distributive  share 
of  the  estate,  may  apply  to  such  Surrogate  for  a de- 
cree directing  payment  of  the  legacy  or  distributive 
share  belonging  or  due  to  such  applicant,  or-the  just 
proportional  part  thereof. 

§ 167.  On  filing  the  petition,  the  Surrogate  will 
issue  a citation  to  the  executor  or  administrator,  re- 
quiring him  to  appear  and  show  cause  why  payment 
should  not  be  made.  The  citation  must  be  served 
at  least  four  days  before  the  day  fixed  for  the  hear- 
ing, and  directions  for  such  service  are  usually  con- 
tained in  the  order  for  issuing  the  citation. 

§ 168.  On  the  day  appointed,  if  the  executor  or 
administrator  fail  to  appear,  a decree  for  payment 
of  the  debt  or  legacy  will  go  against  him  by  default ; 
but-  if  he  appears,  he  may  set  up,  in  answer  to  the 
petition,  that  there  are  unsettled  demands,  or  suits 
pending  against  the  estate,  or  any  other  matter  which 
may  show  uncertainty  as  to  the  assets,  or  furnish  a 
cause  why  the  decree  should  not  be  made. 

§ 169.  But  in  order  to  maintain  such  a defence  it 
will  usually  be  necessary  for  him  to  bring  in  an  ac- 


EXECUTORS  AND  ADMINISTRATORS. 


85* 


count,  which  he  may  do  on  the  day  appointed  for 
showing  cause  ; or  further  time  not  exceeding  thirty 
days,  may  be  allowed  him  for  that  purpose.  And 
if,  in  answer  to  the  petition,  he  does  not  render  an 
account,  or  apply  for  further  time  to  enable  him  to 
do  so,  or  otherwise  distinctly  show  a deficiency,  it 
will  be  held  an  admission  of  sufficient  assets  in  his 
hands  applicable  to  the  petitioner’s  claim. 

§ 170.  The  correctness  of  the  account  may  be  liti- 
gated, and  witnesses  may  be  examined  as  in  other 
cases,  touching  any  question  arising  on  the  petition 
of  the  creditor,  or  the  answer  or  account  of  the  ex- 
ecutor or  administrator.  And  a decree  may  be 
made  ordering  payment,  either  in  whole  or  in  part, 
according  to  the  circumstances  of  the  case.  The 
costs  and  expenses  of  obtaining  the  decree,  if  the 
proof  shews  a fair  case  for  reasonable  doubt  as  to 
the  payment,  would  be  chargeable  upon  the  estate  ; 
if  any  misconduct  appears  on  the  part  of  the  execu- 
tor or  administrator,  they  shall  be  charged  upon 
him  personally  ; in  other  cases  they  must  be  borne 
by  the  petitioner.  If  upon  an  application  of  this 
character  the  Surrogate  should  decide  against  the 
validity  of  the  debt,  his  decision  will  not  conclude 
the  creditor  in  an  action  afterwards  brought  by  him 
against  the  executors  or  administrators  to  recover  the 
same  debt. 

§ 171.  The  statute  also  authorizes  the  Surrogate  > 


66 


THE  LAW  OF 


4o  cause  the  bond  of  an  executor  or  administrator  to 
be  prosecuted,  if  he  refuses  or  omits  to  perform  any 
decree  made  against  him,  upon  a final  settlement,  or 
for  the  payment  of  a debt,  legacy  or  distributive 
share;  and  directs  the  Surrogate  to  apply  the 
money  when  collected  thereon  in  satisfaction  of 
such  decree,  in  the  same  manner  as  it  ought  to  have 
been  applied  by  the  executor  or  administrator.  In 
order  to  enforce  such  collection,  the  Surrogate  first 
makes  his  certificate  of  the  amount  of  the  debt  and 
costs  ordered  to  be  paid,  and  delivers  it  to  the  party 
interested,  who  files  the  same  in  the  office  of  the 
clerk  of  the  county  where  he  proposes  to  make  the 
collection.  It  then  becomes  a lien  upon  the  real 
estate  of  the  executor  or  administrator,  equivalent 
io  a judgment,  and  an  execution  is  issued  thereupon. 
And  if  the  execution  should  be  returned,  unsatisfied, 
the  Surrogate  is  next  directed  to  assign  the  bond 
given  by  the  executor  or  administrator  to  the  person 
in  whose  favor  the  decree  was  made,  for  the  pur- 
pose of  being  prosecuted  in  an  ordinary  suit  at  law. 

§ 172.  A legatee  has  no  authority  to  take  posses- 
sion of  a legacy  without  the  consent  of  the  executor, 
although  the  testator,  by  his  will,  expressly  directs 
him  to  do  so ; and  if  he  should,  the  executor  may 
maintain  an  action  of  trespass  against  him.  The  law 
devolves  all  the  testator’s  personal  property  on  the 
executor,  in  the  first  instance  for  the  payment  of  his 


EXECUTORS  AND  ADMINISTRATORS. 


87 


debts  ; and  before  the  executor  can  pay  legacies  he 
is  bound  to  see  if  there  will  be  sufficient  left  with 
which  to  pay  creditors.  In  case  the  assets  prove 
inadequate,  the  legacies  must  abate,  or  fail  alto- 
gether, according  to  the  extent  of  the  deficiency.  If 
on  a failure  of  assets,  he  pays  legacies,  he  becomes 
personally  responsible  to  creditors  to  the  amount  of 
such  legacies  ; hence,  as  a protection  to  the  executor, 
the  law  imposes  the  necessity  of  his  assent  to  a 
legacy  before  it  can  be  absolutely  vested. 

§ 173.  Legacies  are  not  payable  by  an  executor 
or  administrator,  until  after  the  expiration  of  one 
year  from  the  time  of  granting  letters  testamentary 
or  of  administration,  unless  the  same  are  directed  by 
the  will  to  be  sooner  paid.  But  in  case  a legacy  is 
directed  to  be  sooner  paid,  the  executor  or  adminis- 
trator may  require  a bond,  with  two  sufficient  sure- 
ties, conditioned  that  if  debts  against  the  deceased 
shall  duly  appear,  and  which  there  shall  be  no  other 
assets  to  pay,  and  there  shall  be  no  other  assets  to 
pay  other  legacies,  or  not  sufficient,  that  then  the 
legatee  shall  refund  the  legacy  so  paid,  or  such  rateable 
proportion  thereof,  with  the  other  legatees,  as  may 
be  necessary  for  the  payment  of  the  said  debts,  and 
the  proportional  parts  of  such  other  legacies,  if  there 
be  any,  and  the  costs  and  charges  incurred  by  reason 
of  the  payment  to  such  legatee  ; and  that  if  the  pro- 
bate of  the  will,  under  which  such  legacy  is  paid, 


88 


THE  LAW  OF 


shall  be  revoked,  or  the  will  declared  void,  then  that 
such  legatee  shall  refund  the  whole  of  such  legacy, 
with  interest,  to  the  executor  or  administrator  enti- 
tled thereto. 

§ 174.  If  there  be  any  deficiency  of  assets  with- 
out waste,  and  the  executor  pay  one  legatee  in  full, 
the  other  legatees,  as  well  as  the  creditors,  may 
follow  the  assets,  into  the  hands  of  such  legatee,  and 
compel  him  to  refund  for  their  benefit.  And  even 
in  case  of  waste,  the  same  thing  may  be  done  by 
creditors,  but  not  by  legatees ; in  that  case  they 
must  look  to  the  executors.  So,  if  by  mistake  the 
executor  shall  pay  a legacy  in  full,  and  debts  are 
afterwards  discovered,  of  which  he  had  no  notice  ; 
or  if  losses  are  sustained,  upon  outstanding  responsi- 
bilities or  contingencies,  which  no  common  prudence 
could  foresee  or  prevent,  so  that  the  estate  becomes 
insufficient  to  pay  all  debts  and  legacies,  the  legatee 
is  bound,  not  only  in  justice,  but  upon  the  implied 
condition  on  which  he  received  his  legacy,  to  refund 
rateably ; and  this  even  if  no  refunding  bond  has- 
been  taken,  for  such  bond  does  not  create  the  liabil- 
ity, but  is  taken  only  for  the  further  security  of  the 
executor. 

§ 175.  It  may  be  well  here  to  add  a caution  to- 
the  executor,  that  he  must,  at  his  peril,  take  notice 
of  all  judgments  against  his  testator,  in  whatever 
ourts  they  may  have  been  rendered  throughout 


EXECUTORS  AND  ADMINISTRATORS. 


89 


the  state ; and  if  he  exhaust  the  assets  by  paying 
debts  of  inferior  dignity,  he  must  satisfy  the  judg- 
ments from  his  own  property.  And  if  he  distributes 
the  estate  by  paying  legacies  or  otherwise,  it  will 
not  exonerate  him  from  the  payment  of  debts  not 
before  exhibited,  if  the  creditors  have  not  been 
limited,  by  the  previous  publication  of  a notice,  as  to 
the  time  of  exhibiting  their  claims.  If  he  pays  off 
the  debts  of  the  estate  at  a discount,  he  is  entitled 
•only  to  a credit  for  the  sum  paid. 

§ 176.  After  the  expiration  of  one  year  from  the 
granting  of  any  letters  testamentary  or  of  adminis- 
tration, the  executors  or  administrators  must  dis- 
charge the  specific  legacies  bequeathed  by  the  will, 
and  pay  the  general  legacies,  if  there  be  assets ; and 
if  there  be  not  sufficient  assets,  then  an  abatement  of 
the  general  legacies  must  be  made  in  equal  propor- 
tions. Such  payment  may  be  enforced  by  the  Sur- 
rogate in  the  same  manner  as  the  return  of  an  inven- 
tory, as  hereinbefore  provided ; and  also  by  a suit 
on  the  bond  of  such  executor  or  administrator,  when- 
ever directed  by  the  Surrogate. 

§ 177.  It  will  be  observed  that  there  are  two  dif- 
ferent species  of  legacy  referred  to  in  the  preceding 
section,  general  and  specific . A legacy  is  general 
when  it  is  so  given,  as  not  to  amount  to  a particular 
thing  or  money  of  the  testator,  distinguished  from  all 
others  of  the  same  kind.  It  is  specific  when  it  is  a 


90 


THE  LAW  OF 


bequest  of  a particular  specified  thing:  thus,  cs 
diamond  ring  is  a general  legacy  since  it  does  not 
require  the  delivery  of  any  one  ring  in  particular 
but  to  give  the  diamond  ring  presented  to  me  by  my 
grandmother , is  a specific  legacy,  which  requires  the 
delivery  of  that  identical  ring,  and  no  other.  All 
legacies  that  are  not  specific  are  general,  but  this 
latter  term  is  usually  applied  to  pecuniary  legacies. 

§ 178.  This  distinction  is  important  to  be  borne- 
in  mind,  for  articles  not  specifically  bequeathed  are 
to  be  first  sold  for  the  payment  of  debts ; but  articles 
not  so  bequeathed  are  not  to  be  sold  until  the  resi- 
due of  the  personal  estate  has  been  applied  to  such 
payment.  And  if  there  be  a deficiency  of  assets,  a 
specific  legacy  will  not  be  liable  to  abate  with  the 
general  legacies ; but  if  the  specific  legacy  fail,  by 
the  ademption  or  inadequacy  of  its  subject,  the  lega- 
tee will  not  be  entitled  to  any  recompense  out  of  the 
general  personal  estate. 

§ 179.  Courts  are  averse  from  construing  legacies 
to  be  specific,  but  if  the  words  clearly  indicate  an 
intention  to  separate  the  particular  thing  bequeathed 
from  the  general  property  of  the  testator,  they  will 
have  that  operation.  Hence,  under  some  circum- 
stances, some  pecuniary  legacies  are  held  to  be  spe- 
cific. As  a certain  sum  of  money  in  a certain  bag 
or  chest ; or  the  bequest  of  a sum  of  money  in  the 
hands  of  a person  who  is  named  'r  or  the  balance  of 


EXECUTORS  AND  ADMINISTRATORS. 


91 


•an  account  due  to  the  testator  from  that  person.  A 
bequest  of  thirty  shares  of  stock  in  the  Bank  of  the 
United  States  has  been  held  to  be  a specific  legacy  ; 
so  has  a bequest  to  “ my  beloved  wife  of  all  the  pro- 
perty she  brought  me  at  my  marriage.” 

§ 180.  A mere  bequest  of  quantity,,  whether  of 
money  or  of  any  other  chattel,  is  a general  legacy ; 
as  of  a quantity  of  stock ; and  if  the  testator  has  not 
such  stock  at  his  death,  such  a bequest  amounts  to 
a direction  to  the  executor  to  preserve  so  much  stock 
for  the  legatee.  But  if  a testator  gives  a sum  in 
stock,  standing  in  his  name , and  has  not  the  stock 
described,  nor  any  other  stock,  the  legacy  fails. 
Personal  annuities  given  by  will  are  also  general 
legacies  ; but  if  they  are  made  payable  out  of  a par- 
ticular fund,  and  not  out  of  the  estate  at  large,  they 
become  specific.  It  is  said  also  that  an  executor  is 
not  bound  to  search  out  a legatee ; it  is  enough  if 
he  is  always  ready,  when  called  upon,  to  pay  the 
legacy.  A legatee  must  therefore  bear  the  loss,  if 
any  arises,  by  a depreciation  upon  property  in  the 
hands  of  an  executor  which  he  has  always  been 
ready  to  pay  over. 

§ 181.  It  is  necessary  also  that  the  executor,  be- 
fore he  proceeds  to  pay,  should  consider  the  differ- 
ence between  legacies  as  lapsed  or  vested,  for  it  is  a 
general  rule,  that  if  a legatee  die  before  the  testator, 
the  legacy  intended  for  him  will  become  lapsed, 


92 


THE  LAW  OF 


there  being  no  longer  a person  to  pay  to ; and  in 
that  event  it  sinks  into  the  residuum  of  the  testator’s 
personal  estate;  and  this  will  happen,  although 
the  form  of  the  bequest  should  be  to  the  legatee,  his 
executors,  administrators  and  assigns.  But  if  the 
legacy  is  left  to  him,  payable  at  a certain  age,  it  is  a 
vested  interest  in  him,  if  he  survives  the  testator, 
and  though  payable  at  a future  day,  is  an  assignable 
or  merchantable  interest. 

§ 182.  The  statute  however  preserves  a legacy 
to  a grandchild  or  other  descendant  of  the  testator 
under  these  circumstances,  by  declaring  that  if  a 
legatee  or  devisee,  who  is  a child  or  other  descen- 
dant of  the  testator,  shall  die  during  the  lifetime  of 
the  testator,  leaving  a child  or  other  descendant, 
who  shall  survive  the  testator,  such  legacy  or  devise 
shall  not  lapse,  but  the  property  so  devised  or  be- 
queathed, shall  rest  in  the  surviving  child  or  other 
descendant  of  the  legatee  or  devisee  as  if  such  lega- 
tee or  devisee  had  survived  the  testator,  and  had 
died  intestate. 

§ 183.  In  case  any  legatee  is  a minor,  his  legacy, 
if  under  the  value  of  fifty  dollars,  may  be  paid  to  his 
father,  to  the  use  and  for  the  benefit  of  such  minor. 
If  the  legacy  be  of  the  value  of  fifty  dollars  or  more, 
the  same  may,  under  the  direction  of  the  Surrogate, 
be  paid  to  the  general  guardian  of  the  minor,  who 
will  be  required  to  give  security  to  the  minor,  to  be 


EXECUTORS  AND  ADMINISTRATORS. 


9& 


approved  by  the  Surrogate,  for  the  faithful  applica- 
tion and  accounting  for  such  legacy. 

§ 184.  If  there  be  no  such  guardian,  or  the  Sur- 
rogate does  not  direct  such  payment,  the  legacy  will 
be  invested  in  permanent  securities,  under  the  direc- 
tion of  the  Surrogate,  in  the  name,  and  for  the  bene- 
fit of  such  minor,  upon  annual  interest ; and  the  in- 
terest may  be  applied,  under  the  direction  of  the 
Surrogate,  to  the  support  and  education  of  such 
minor. 

§ 185.  After  having  paid  all  the  debts,  the  legacies 
must  be  satisfied  as  far  as  the  assets  will  extend,  but 
the  executor  cannot  give  himself  the  preference. 
The  assets,  if  insufficient  to  carry  out  all  the  pro- 
visions of  the  will,  must  be  paid  in  proportionate 
amounts  to  the  legatees.  Yet  if  a specific  legacy  be 
left  to  any  one  individual,  then  he  must  have  the 
whole  of  that  legacy,  without  reference  to  the  rest  of 
the  legatees ; as  for  instance,  where  a testator,  after 
leaving  several  legacies,  says  that  one  particular  in- 
dividual is  to  have  the  whole  of  the  money  vested 
in  certain  three  per  cent,  stocks,  that  individual  will 
take  the  whole  of  the  tli|ee  per  cent,  stock,  even 
though  there  should  be  nothing  else  to  satisfy  the 
other  legatees. 

§ 186.  Assets  are  termed  either  real  or  personal , 
according  to  the  nature  of  the  property  whence  they 
are  derived  ; and  legal  or  equitable , according  to  the 
9 


94 


THE  LAW  OF 


means  by  which  they  are  obtained,  or  the  mode  in 
which  they  are  applied.  Legal  assets  are  derived 
from  any  property  which,  at  the  death  of  the  de- 
ceased, is  commonly  liable  for  the  payment  of  debts, 
and  comes  to  the  hands  of  the  executor  or  adminis- 
trator to  be  disposed  of  in  the  course  of  administra- 
tion. The  produce  of  real  estate,  when  not  left  for 
any  particular  purpose  by  the  testator,  is  used  for 
the  payment  of  debts,  according  to  their  legal  pri- 
ority ; but  equitable  assets  are  applied  to  the  liqui- 
dation of  every  debt,  in  proportionable  amounts,  at 
the  same  time.  The  last,  however,  are  only  such  as 
can  be  reached  through  a court  of  equity,  and  com- 
prise the  produce  of  real  estate,  which,  by  the  act 
of  the  testator,  has  been  made  chargeable  for  the 
payment  of  his  debts,  though  it  would  have  other- 
wise been  exonerated. 

§ 187.  No  debts  can  be  paid  by  debtors  to  lega- 
tees, but  they  must  pass  through  the  hands  of  the 
executor,  who  alone  can  give  a legal  discharge  for 
them ; and,  if  the  executor  pay  out  the  assets  in 
legacies,  and  afterwards  debts  are  presented  of  which 
he  had  no  notice,  he  may,  by  bill  in  equity,  com- 
pel the  legatees  to  refund,  in  order  to  pay  the  debts. 
One  legatee  shall  refund  for  another,  if  it  be  neces- 
sary for  equality  of  payment,  and  for  a creditor  of 
the  testator ; but,  if  an  executor  pays  a debt  of  sim- 
ple contract,  and  omits  one  of  a higher  nature,  no 


EXECUTORS  AND  ADMINISTRATORS. 


9& 


refunding  is  required  for  that,  and  the  executor  must 
take  the  responsibility  of  the  debt  upon  himself. 
The  personal  estate  of  a testator  must  be  first  used 
for  the  discharge  of  his  debts,  unless  he  shall  have 
particularly  exempted  it  in  his  will,  and  this  even 
though  it  be  secured  oh  mortgage. 

§ 18S.  Lands  which  are  left  to  pay  debts  must 
be  used  to  pay  off  mortgages,  even  though  the 
mortgaged  lands  have  been  left  expressly  with  the 
incumbrance  stated  upon  them  ; so  descended  lands 
and  unincumbered  lands  specifically  devised,  after 
payment  of  debts,  must  be  used  to  discharge  mort- 
gages. The  rule,  however,  is  otherwise  when  the 
debt  is  on  the  real  estate  chiefly,  although  there  be 
a collateral  personal  security.  When  the  personal 
assets  are  exhausted,  the  real  estates  must  next  be 
applied  for  the  payment  of  debts ; and  of  these  that 
which  is  expressly  devised  for  the  payment  of  debts 
first,  next  that  which  is  descended,  and  lastly  that 
which  is  specifically  devised. 

§ 189.  As  it  is  the  object  of  equity  that  every 
debt  shall  be  satisfied  as  far  as  the  assets  will  go,  it 
is  an  established  rule  that  where  there  are  debts  of 
which  part  have  two  funds  to  go  to  for  satisfaction, 
and  the  other  part  only  one,  that  which  has  two 
shall  first  apply  to  the  fund  for  liquidation,  on  which 
the  second  has  no  claim.  Thus,  if  a specialty  creditor 
be  satisfied  out  of  the  personal  assets  when  he  had  a 


96 


THE  LAW  OF 


lien  on  the  real  assets,  and  the  personal  assets  be 
exhausted,  a simple  contract  creditor  will  then  have 
a claim  upon  the  real  assets  in  the  place  of  the  spe- 
cialty creditor,  who  ought  to  have  gone  to  them  first. 

§ 190.  Where  legacies  are  charged  upon  the  real 
estate  by  the  will,  but  not  the  legacies  given  in  the 
codicil,  the  former  must  be  paid  out  of  the  real  es- 
tate where  there  is  not  sufficient  personalty  to  pay 
the  whole ; and,  where  lands  are  charged  with  the 
payment  of  all  debts,  a pecuniary  legatee  stands 
upon  the  same  footing  as  a simple  contract  creditor, 
who  has  not  been  paid  out  of  the  personalty.  But 
he  cannot  stand  in  the  place  of  a specialty  creditor 
-against  lands  devised,  though  he  may  against  lands 
descended.  He  will,  however,  have  the  same  title 
as  a mortgagee,  when  the  personal  assets  have  been 
exhausted,  and  have  a right  to  be  satisfied  out  of  the 
mortgaged  property,  even  though  it  be  specifically 
devised. 

§ 191.  The  application  of  personal  assets,  there- 
fore, to  discharge  a mortgage  will  not  defeat  the 
claims  of  a legatee  upon  the  real  estate,  for  the 
remedy  of  the  mortgagee  was  first  against  the  estate 
pledged  to  him ; and  if  he  be  paid  from  another 
source,  it  is  not  just  that  the  rights  of  those  should 
be  barred  who  have  a claim  from  that  source ; for 
that  would  be  depriving  one,  in  order  that  another 
might  be  satisfied.  The  rule  is,  that  the  rights  of 


EXECUTORS  AND  ADMINISTRATORS. 


97 


one  claimant  shall  not  hinder  the  rights  of  another 
when  the  estate  is  sufficient  to  satisfy  all ; but  in 
every  case,  whether  there  be  sufficient  in  the  whole 
estate  or  not,  each  claim  must  be  satisfied  in  its  due 
course,  and  the  estate  must  be  converted  as  may 
happen  to  be  necessary,  but  yet  according  to  the 
rules  laid  down. 

§ 192.  With  regard  to  interest  payable  upon  lega- 
cies, the  executor  should  understand  that  specific 
legacies  are  considered  as  separated  from  the  gene- 
ral estate,  and  appropriated  at  the  time  of  the  testa- 
tor’s death;  and  consequently,  from  that  period, 
whatever  accrues  upon  them  belongs  to  the  legatees. 
Therefore,  when  there  is  a specific  legacy  of  stock 
the  dividends  belong  to  the  legatee,  from  the  death 
of  the  testator,  although  the  enjoyment  of  the  prin- 
cipal may  be  postponed  by  the  testator  to  a distant 
period.  But,  in  general,  a specific  legacy,  where  the 
value  is  fixed  by  the  testator,  does  not  carry  interest. 

§ 193.  General  legacies,  however,  bear  interest 
from  the  time  they  become  payable.  When  no  time 
of  payment  is  fixed,  the  executor  being  allowed  a 
year  from  the  testator’s  death  to  ascertain  and  settle 
the  estate,  the  law  presumes  it  to  have  been  done  at 
the  expiration  of  that  period,  from  which  time  interest 
will  become  payable,  unless  some  other  period  is  de- 
signated in  the  will  for  that  purpose.  And  where  an 
annuity  is  given  without  mentioning  any  time  of  pay- 


•98 


THE  LAW  OF 


ment,  it  commences  from  the  death  of  the  testator, 
and  the  first  payment  is  due  at  the  expiration  of  the 
year  ; from  which  period  also  interest  may  be  claimed 
if  the  payment  is  deferred.  But  where  the  time  of 
payment  is  fixed  by  the  will,  the  general  rule  is,  that 
the  legacy  will  not  carry  interest  before  the  period 
fixed  shall  arrive,  whether  the  legacy  be  vested  or 
■contingent. 

§ 194.  After  all  debts  and  legacies  have  been 
paid,  it  is  the  duty  of  the  executor  to  distribute  the 
balance  of  the  personal  property  amongst  those  en- 
titled to  it.  And  this  he  may  do  at  any  time  with- 
out applying  to  the  Surrogate,  if  he  is  satisfied  that 
all  such  claimants  have  been  paid,  and  that  a clear 
surplus  remains,  over  and  above  what  will  be  re- 
quired to  pay  all  debts,  legacies  and  expenses.  In- 
deed he  is,  in  justice  to  the  next-of-kin,  bound  to 
pay  out  and  distribute  the  assets,  from  time  to  time, 
and  not  suffer  them  to  accumulate  in  his  hands  be- 
yond what  is  necessary  to  make  such  payments. 

§ 195.  But  should  the  executor  or  administrator 
omit  or  neglect  to  distribute  the  property  to  and 
amongst  those  entitled  thereto,  any  person  having  a 
demand  against  the  personal  estate  of  the  deceased, 
either  as  creditor,  legatee,  or  next-of-kin,  may,  at 
any  time  after  eighteen  months  from  the  time  of  the 
appointment  of  such  executor  or  administrator,  apply 
to  the  Surrogate,  to  compel  such  executor  or  admin- 


EXECUTORS  AND  ADMINISTRATORS. 


99 


istrator  to  render  an  aecount  of  his  receipts  and  dis- 
bursements. In  case  any  person  having  such  claim 
be  a minor,  the  application  must  be  made  by  some 
person  of  full  age,  as  his  next  friend. 

§ 196.  Any  next-of-kin  may  compel  a distribution 
of  assets,  as  far  as  practicable,  by  application  to  the 
Surrogate  for  that  purpose,  at  any  time  after  one 
year  shall  have  elapsed  from  the  granting  of  letters 
testamentary  or  of  administration. 

§ 197.  Where  the  deceased  shall  have  died  intes- 
tate, the  surplus  of  his  personal  estate  remaining 
after  the  payment  of  debts,  and  where  the  deceased 
left  a will,  the  surplus  remaining  after  payment  of 
debts  and  legacies,  if  not  bequeathed,  shall  be  dis- 
tributed to  the  widow,  children,  or  next-of-kin  of  the 
deceased,  in  manner  following  : 

1.  One-third  part  thereof  to  the  widow,  and  all 
the  residue  by  equal  portions  among  the  children, 
and  such  persons  as  legally  represent  such  children, 
if  any  of  them  shall  have  died  before  the  deceased. 

2.  If  there  be  no  children,  nor  any  legal  repre- 
sentatives of  them,  then  one  moiety  of  the  whole 
surplus  shall  be  allotted  to  the  widow ; and  the 
other  moiety  shall  be  distributed  to  the  next-of-kin 
of  the  deceased,  entitled  under  the  provisions  of  this 
section. 

3.  If  the  deceased  leave  a widow,  and  no  de- 
scendant, parent,  brother  or  sister,  nephew  or  niece, 


100 


THE  LAW  OF 


the  widow  shall  be  entitled  to  the  whole  surplus 
but  if  there  be  a brother  or  sister,  nephew  or  niece,, 
and  no  descendant  or  parent,  the  widow  shall  be  en- 
titled to  a moiety  of  the  surplus,  as  above  provided, 
and  to  the  whole  of  the  residue,  where  it  does  not 
exceed  two  thousand  dollars.  If  the  residue  exceed 
that  sum,  she  shall  receive,  in  addition  to  her  moiety, 
two  thousand  dollars ; and  the  remainder  shall  be 
distributed  to  the  brothers  and  sisters,  and  their 
representatives. 

4.  If  there  be  no  widow,  then  the  whole  surplus 
shall  be  distributed  equally  to  and  among  the 
children,  and  such  as  legally  represent  them. 

5.  In  case  there  be  no  widow,  and  no  children, 
and  no  representatives  of  a child,  then  the  whole 
surplus  shall  be  distributed  to  the  next-of-kin,  in 
equal  degree  to  the  deceased  and  their  legal  repre- 
sentatives. 

6.  If  the  deceased  shall  leave  no  children,  and  no 
representatives  of  them,  and  no  father,  and  shall 
leave  a widow  and  a mother,  the  moiety  not  dis- 
tributed to  the  widow  shall  be  distributed  in  equal 
shares  to  his  mother  and  brothers  and  sisters,  or  the 
representatives  of  such  brothers  and  sisters ; and  if 
there  be  no  widow,  the  whole  surplus  shall  be  dis- 
tributed in  like  manner  to  the  mother,  and  to  the 
brothers  and  sisters,  or  the  representatives  of  such 
brothers  and  sisters. 


EXECUTORS  AND  ADMINISTRATORS. 


101 


7.  If  the  deceased  leave  a father,  and  no  child  or 
descendant,  the  father  shall  take  a moiety,  if  there 
be  a widow  ; and  the  whole  if  there  be  no  widow. 

8.  If  the  deceased  leave  a mother,  and  no  child, 
descendant,  father,  brother,  sister,  or  representative 
of  a brother  or  sister,  the  mother,  if  there  be  a 
widow,  shall  take  a moiety,  and  the  whole  if  there 
be  no  widow. 

9.  Where  the  descendants  or  next-of-kin  of  de- 
ceased, entitled  to  share  in  his  estate,  shall  be  all  in 
equal  degree  to  the  deceased,  their  shares  shall  be 
equal. 

10.  When  such  descendants  or  next-of-kin  shall 
be  of  unequal  degrees  of  kindred,  the  surplus  shall 
be  apportioned  among  those  entitled  thereto,  accord- 
ing to  their  respective  stocks ; so  that  those  who  take 
in  their  own  right,  shall  receive  equal  shares,  and 
those  who  take  by  representation  shall  receive  the 
share  to  which  the  parent  whom  they  represent,  if 
living,  would  have  been  entitled. 

11.  No  representation  shall  be  admitted  among 
collaterals,  after  brothers’  and  sisters’  children. 

12.  Relatives  of  the  half-blood  shall  take  equally 
with  those  of  the  whole-blood  in  the  same  degree ; 
and  the  representatives  of  such  relatives  shall  take  in 
the  same  manner  as  the  representatives  of  the  whole 
blood. 

13.  Descendants  and  next-of-kin  of  the  deceased, 


102 


THE  LAW  OF 


begotten  before  his  death  but  born  thereafter,  shall 
take  in  the  same  manner  as  if  they  had  been  born  in 
the  lifetime  of  the  deceased,  and  had  survived  him. 

§ 198.  If  any  child  of  such  deceased  person  shall 
have  been  advanced  by  the  deceased,  by  settlement 
or  portion  of  real  or  personal  estate,  the  value  thereof 
shall  be  reckoned  with  that  part  of  the  surplus  of  the 
personal  estate  which  shall  remain  to  be  distributed 
among  the  children ; and  if  such  advancement  be 
equal  or  superior  to  the  amount  which,  according  to 
the  preceding  rules,  would  be  distributed  to  such 
child,  as  his  share  of  the  surplus  and  advancement,, 
then  such  child,  and  his  descendants,  shall  be  ex- 
cluded from  any  share  in  the  distribution  of  such 
surplus. 

§ 199.  But  if  such  advancement  be  not  equal  to 
such  amount,  such  child,  or  his  descendants,  will 
be  entitled  to  receive  so  much  only,  as  shall  be  suf- 
ficient to  make  all  the  shares  of  all  the  children  in 
such  surplus  and  advancement  to  be  equal,  as  near 
as  can  be  estimated. 

§ 200.  The  maintaining  or  educating,  or  the  giving 
of  money  to  a child,  without  a view  to  a portion  or 
a settlement  in  life,  will  not  be  deemed  an  advance- 
ment, within  the  meaning  of  the  two  last  sections ; 
nor  will  those  sections  apply  in  any  case  where 
there  shall  be  any  real  estate  of  the  intestate  to  de- 
scend to  his  heirs. 


EXECUTORS  AND  ADMINISTRATORS. 


103 


§ 201.  By  the  Revised  Statutes  it  was  declared, 
that  the  preceding  provisions  respecting  the  distri- 
bution of  estates,  shall  not  apply  to  the  personal 
estates  of  married  women ; but  their  husbands  may 
demand,  recover,  and  enjoy  the  same,  as  they  are 
entitled  by  the  rules  of  the  common  law.  The  re- 
cent law  of  the  State  of  New-York,  however,  having 
removed  the  disability  of  a married  woman  to  con- 
trol and  dispose  of  her  own  property,  an  executor  or 
administrator  would  doubtless  be  entirely  safe  in 
paying  to  her  any  legacy,  or  distributive  portion 
of  the  assets  that  accrued  to  her  after  the  passage  of 
that  law.* 

§ 202.  Should  any  one  of  the  next-of-kin  who  is 
entitled  to  share  in  the  distribution  die  after  the  death 


* The  real  and  personal  property  of  any  female  who  may 
hereafter  marry,  and  which  she  shall  own  at  the  time  of 
marriage,  and  the  rents,  issues  and  profits  thereof  shall  not  be 
subject  to  the  disposal  of  her  husband,  nor  be  liable  for  his 
debts,  and  shall  continue  her  sole  and  separate  property,  as 
if  she  were  a single  female. 

The  real  and  personal  property,  and  the  rents,  issues  and 
profits  thereof,  of  any  female  now  married,  shall  not  be  sub- 
ject to  the  disposal  of  her  husband  ; but  shall  be  her  sole  and 
separate  property  as  if  she  were  a single  female,  except  so  far 
as  the  same  may  be  liable  for  the  debts  of  her  husband  here- 
tofore contracted. 

Any  married  female  may  take  by  inheritance  or  by  gift, 
grant,  devise  or  bequest,  from  any  person  other  than  her 


104 


THE  LAW  OF 


of  the  testator  or  intestate,  and  before  the  distribu- 
tion should  be  actually  decreed  by  the  Surrogate, 
the  share  which  would  have  been  distributed  to  such 
next-of-kin,  had  he  survived  to  receive  the  same, 
vests  by  his  death  in,  and  must  be  distributed  and 
paid  to  his  personal  representatives. 

§ 203.  There  has  been  much  discussion  as  to  the 
rule  of  distribution  of  personal  property,  when  the 


husband,  and  hold  to  her  sole  and  separate  use,  and  convey 
and  devise  real  and  personal  property,  and  any  interest  on 
estate  therein,  and  the  rents,  issues  and  profits  thereof,  in  the 
same  manner  and  with  like  effect  as  if  she  were  unmarried, 
and  the  same  shall  not  be  subject  to  the  disposal  of  her 
husband,  nor  be  liable  for  his  debts. 

Any  person  who  may  hold,  or  who  may  hereafter  hold,  as 
trustee  for  any  married  women,  any  real  or  personal  estate  or 
other  property  under  any  deed  of  conveyance  or  otherwise,  on 
the  written  request  of  such  married  women,  accompanied  by 
a certificate  of  a justice  of  the  Supreme  Court  that  he  has 
examined  the  condition  and  situation  of  the  property,  and 
made  due  enquiry  into  the  capacity  of  such  married  women 
to  manage  and  control  the  same,  may  convey  to  such  married 
women,  by  deed  or  otherwise,  all  or  any  portion  of  such  pro- 
perty, or  the  rents,  issues  or  profits  thereof,  for  her  sole  and 
separate  use  and  benefit. 

All  contracts  made  between  persons  in  contemplation  of 
marriage,  shall  remain  in  full  force  after  such  marriage  takes 
place. — Acts  of  the  Legislature  of  the  State  of  New-York9 
passed  April  1th , 1848,  and  amended  April  1 1th,  1849. 


. > 


EXECUTORS  AND  ADMINISTRATORS. 


105 


place  of  the  domicil  of  the  intestate,  and  the  place 
of  the  situation  of  the  property  were  different.  But 
Chancellor  Kent  states  it  to  have  now  become  a 
settled  principle  of  international  law,  and  one  founded 
on  an  enlightened  sense  of  public  policy  and  com 
venience,  that  the  disposition,  succession  and  distri- 
bution of  personal  property,  wherever  situated, 
is  governed  by  the  law  of  the  country  of  the  owner’s 
domicil  at  the  time  of  his  death,  and  not  by  the 
conflicting  laws'of  the  various  places  where  the  goods 
happen  to  be  found.  Personal  property  is  subject 
to  that  law  which  governs  the  person  of  the  owner. 
On  the  other  hand,  it  is  equally  well  settled  in  the 
laws  of  all  civilized  countries,  that  real  property,  as  to 
its  tenure,  mode  of  enjoyment,  transfers  and  descent, 
is  to  be  regulated  by  the  law  of  the  place  where  the 
property  is  situated.  And  these  principles  apply 
equally  to  cases  of  voluntary  transfers,  of  intestacy 
and  of  testament. 


10 


106 


THE  LAW  OF 


CHAPTER  V. 

OF  ACCOUNTING,  AND  BEING  DISCHARGED. 

§ 204.  After  the  expiration  of  eighteen  months 
from  the  time  of  the  appointment  of  an  executor  or 
administrator,  he  may  voluntarily  render  an  account 
of  his  proceedings  before  the  Surrogate,  and  after 
giving  due  notice  of  his  intention,  by  the  service  of  a 
citation  upon  the  next-of-kin,  to  the  parties  interested 
in  the  estate,  may  require  that  his  accounts  be  ex- 
amined and  settled  by  the  Surrogate,  and  may  pro- 
cure a decree  confirming  or  correcting  such  disposi- 
tion of  the  property  of  the  estate  as  he  may  have 
made,  and  directing  him  in  the  legal  distribution  of 
such  of  it  as  may  still  remain  in  his  hands. 

§ 205.  An  executor  or  administrator  may  also,  at 
any  time  after  the  expiration  of  eighteen  months 
from  the  time  of  his  appointment,  be  required  to 
render  an  account  of  his  proceedings,  by  an  order  of 
the  Surrogate  who  appointed  him,  to  be  granted 
upon  application  of  some  person  having  a demand 
against  the  personal  estate  of  the  deceased,  either  as 
creditor,  legatee,  or  next-of-kin,  or  of  some  person 
in  behalf  of  any  minor  having  such  claim,  or  without 
such  application. 


EXECUTORS  AND  ADMINISTRATORS.  107 

§ 206.  The  order  must  be  served  upon  him  by 
showing  him  the  original,  and  at  the  same  time  de- 
livering him  a copy  thereof,  or  in  case  of  his  absence 
from  home,  by  leaving  a copy  thereof  with  his  wife, 
or  some  suitable  person  at  the  place  of  his  residence, 
thirty  days  at  least  before  the  time  of  hearing.  But 
if  such  executor  or  administrator  shall  not  reside 
within  this  State,  the  order  shall  be  served  by  pub- 
lishing it  once  in  each  week  for  three  months  before 
the  return  day  thereof,  in  the  State  paper,  and  also 
in  the  county  paper  where  the  Surrogate  resides  who 
issued  the  order,  if  there  is  any  such  paper  published 
in  said  county,  and  if  not,  in  the  county  paper  of 
some  adjoining  county,  unless  the  order  be  person- 
ally served  on  such  executor  or  administrator,  and  if 
it  shall  be  personally  served  on  any  such  executor 
or  administrator  residing  out  of  the  State  at  the  time 
of  the  service,  such  service  shall  be  made  at  least 
sixty  days  before  the  return  day  thereof. 

§ 207.  If  the  person  applies  as  a creditor,  he 
must  be  such  at  the  tune  of  making  his  application ; 
and  if  he  has  sold  his  debt,  the  person  who  has  pur- 
chased it  must  be  the  applicant,  for  no  one  but  the 
real  party  in  interest  will  be  recognized  as  the  credi- 
tor. 

§ 208.  The  person  applying  to  the  Surrogate, 
must  present  a petition,  showing  the  nature  and 
extent  of  his  claim  against  the  estate  ; and  if  it  is 


108 


THE  LAW  OF 


not  sufficiently  and  fully  stated,  the  executor  or 
administrator  may  call  upon  the  Surrogate  to  reject 
it  on  that  ground  alone ; he  may  also  take  issue  upon 
the  facts  set  forth  in  the  petition,  or  may  put  in  a 
counter  allegation,  showing  that  the  petitioner  is  not 
a creditor,  or  for  some  other  reason  has  no  right  to 
the  relief  he  seeks. 

§ 209.  Obedience  to  the  Surrogate’s  order  may 
be  enforced  in  the  manner  hereinbefore  pointed  out, 
to  compel  the  return  of  an  inventory  ; and  in  case 
of  disobedience,  the  same  proceeding  may  be  had  to 
attach  the  party  disobeying,  and  to  discharge  him. 
And  the  letters  testamentary  or  of  administration 
may  be  revoked,  in  case  the  party  absconds  or  con- 
ceals himself,  so  that  the  order  cannot  be  personally 
served,  or  if  he  neglects  to  render  an  account  within 
thirty  days  after  being  committed,  and  new  letters 
will  be  granted  with  like  effect  as  in  those  cases. 

§ 210.  Although  an  account  in  full  of  the  pro- 
ceedings of  the  executor  or  administrator  cannot  be 
compelled  before  the  Surrogate,  before  the  expira- 
tion of  eighteen  months  from  the  time  of  the  grant- 
ing of  the  letters  testamentary,  or  of  administration  ; 
yet,  upon  the  application  of  a creditor,  the  payment 
of  any  debt,  or  the  proportional  part  thereof,  may  be 
decreed  by  the  Surrogate,  at  any  time  after  six 
months  shall  have  elapsed,  from  the  granting  of  let- 
ters testamentary,  or  of  administration ; and  upon 


EXECUTORS  AND  ADMINISTRATORS. 


109 


the  application  of  a legatee  or  relative  entitled  to  a 
distributive  share,  or  its  just  proportional  part,  may 
be  decreed  by  the  Surrogate  at  any  time  after  one 
year  shall  have  elapsed  from  the  granting  of  such 
letters. 

§ 211.  When  the  application  for  a settlement  o 
accounts  is  made  by  the  executor  or  administrator, 
the  citation  must  be  personally  served  on  all  those 
to  whom  it  shall  be  directed  living  in  the  county  of 
the  Surrogate,  at  least  fifteen  days  before  the  return 
day  thereof ; and  upon  those  living  out  of  the  county, 
or  whose  residence  may  be  unknown,  either  perso- 
nally fifteen  days  previously,  or  by  publishing  the 
same  in  a newspaper  printed  in  the  county,  at  least 
four  weeks  before  the  return  day,  and  in  such  other 
newspaper  published  in  places  where  persons  inte- 
rested in  the  estate  may  reside,  as  the  Surrogate 
shall  direct. 

§ 212.  If  there  are  creditors  or  other  persons  in- 
terested in  the  estate,  residing  in  any  other  of  the 
United  States  or  in  Canada,  the  citation,  unless  per- 
sonally served  at  least  forty  days  before  the  return 
day,  must  be  published  once  a week  for  three  months 
in  the  state  paper ; and  if  any  of  such  interested 
persons,  reside  out  of  the  United  States  and  out  of  the 
provinces  of  Canada,  the  citation  must  be  published 
as  above  for  six  months. 

§ 213.  In  rendering  his  account,  the  executof*  or 
10* 


110 


THE  LAW  OF 


administrator  must  produce  vouchers  for  all  debts 
and  legacies  paid,  and  for  all  funeral  charges  and 
just  necessary  expenses,  which  must  be  deposited 
and  remain  with  the  Surrogate.  And  he  may  be 
examined  on  oath  touching  such  payments,  as 
well  as  in  relation  to  any  property  or  effects  of  the 
deceased  which  have  come  to  his  hands,  and  the  dis- 
position thereof. 

§ 214.  The  account  is  made  out  in  the  usual 
form  of  debtor  and  creditor,  and  must  be  verified  by 
the  affidavit  of  the  executor  or  administrator  an- 
nexed, in  which  he  must  state  that  the  account  con- 
tains, according  to  the  best  of  his  (the  executors  or 
administrators)  knowledge  and  belief,  a full  and  true 
account  of  all  his  receipts  and  disbursements  on  ac- 
count of  the  estate  of  the  deceased,  and  of  all  sums 
of  money  and  property  belonging  to  such  estate, 
which  have  come  to  his  hands,  or  which  have  been 
received  by  any  other  person  by  his  order  or  au- 
thority for  his  use : and  that  he  does  not  know  of 
any  error  or  omission  in  the  account,  to  the  prejudice 
of  any  of  the  parties  interested  in  the  estate. 

§ 215.  He  may  be  allowed  any  item  of  expendi- 
ture, not  exceeding  twenty  dollars,  for  which  no 
voucher  is  produced,  if  such  item  be  supported  by 
his  own  oath  positively  to  the  fact  of  payment,  speci- 
fying when,  and  to  whom  such  payment  was  made, 
and  if  such  oath  be  uncontradicted  ; but  such  allow- 


EXECUTORS  AND  ADMINISTRATORS. 


Ill 


ances  cannot,  in  the  whole,  exceed  five  hundred  dol- 
lars, for  payments  on  behalf  of  any  one  estate.  And 
in  order  to  authorize  such  allowance,  he  must  specify 
in  the  account  rendered  to  the  Surrogate,  the 
times  when,  the  persons  to  whom,  and  the  purposes 
for  which,  such  several  disbursements  or  payments 
were  made  ; and  must  also,  as  to  the  sums  thus 
charged,  swear  positively  that  they  have  been  actu- 
ally paid  or  disbursed  by  him  as  charged  in  the  ac- 
count. 

§ 216.  The  Surrogate  may  make  him  an  allow- 
ance for  any  property  of  the  deceased  that  may 
have  perished  or  been  lost  without  his  fault.  He 
will  not  be  allowed  to  make  any  profit  by  the  increase, 
nor  shall  he  sustain  any  loss  by  the  decrease,  with- 
out his  fault,  of  any  part  of  estate  ; but  he  must  ac- 
count for  such  increase,  and  will  be  allowed  for  such 
decrease  on  the  settlement  of  the  account. 

§ 217.  Executors  and  administrators  ought  also 
to  understand,  that  it  is  their  duty  to  keep  the  funds 
of  their  trust  separate  and  distinct  from  their  other 
funds  and  business ; and  that  they  can  in  no  other 
way  save  themselves  from  censure,  and,  perhaps,  liti- 
gation. The  protection  of  the  rights  of  others  who 
are  not  in  a situation  to  protect  themselves,  makes  it 
the  duty  of  courts  of  justice  to  require  fiduciaries  to 
make  good  all  losses  which  have  been  occasioned  by 
their  neglect.  If  he  compounds  debts  or  mortgages. 


112 


THE  LAW  OF 


and  buys  them  in  for  less  than  is  due  upon  them,  he 
cannot  take  the  benefit  himself,  but  must  account  to 
the  estate ; and  if  he  lays  out  the  assets  on  private 
securities,  he  must  answer  for  all  deficiencies  which 
may  be  caused  thereby.  And,  indeed,  it  is  said  to 
be  a general  principle,  that  if  an  executor  will  take 
upon  himself  to  act  with  regard  to  the  testator’s  pro- 
perty in  any  other  manner  than  his  trust  requires, 
he  puts  himself  in  this  situation,  that  if  there  be  any 
loss  he  must  replace  it,  but  he  cannot  possibly  be  a 
gainer  by  it ; any  gain  must  be  for  the  benefit  of  the 
estate. 

§ 218.  An  executor  or  administrator  may  also  be 
charged  with  interest  when  he  has  not  been  guilty 
of  any  positive  mismanagement  of  the  funds  in 
his  hands.  The  general  rule  on  this  subject  is 
stated  to  be  that  they  are  liable  to  pay  simple  inte- 
rest where  they  unnecessarily  retain  the  money  in 
their  hands,  hold  it  an  unreasonable  time,  mix  it  with 
their  own  private  funds,  use  it  in  the  way  of  trade, 
or  derive  any  personal  advantage  from  it.  In  cases 
of  a wilful  omission  of  duty  or  of  fraud,  compound  in- 
terest will  be  allowed  against  him. 

§ 219.  As  to  investments  made  by  him,  the  rule 
appears  to  be  that  if  he  puts  out  the  money  of  the 
testator,  upon  a real  security,  which  there  was  no 
reason  then  to  suspect,  but  afterwards  the  security 
proves  bad,  he  is  not  accountable  for  the  loss  ; but  if 


EXECUTORS  AND  ADMINISTRATORS. 


113 


he  lends  such  money  upon  a mere  personal  security, 
it  is  to  be  considered  a breach  of  trust,  and  he  be- 
comes personally  responsible  if  the  security  proves 
defective.  If,  however,  the  will  directs  the  execu- 
tors to  lay  out  the  fund  in  real  or  personal  securi- 
ties, they  would  be  justified,  as  against  legatees, 
in  using  a sound  discretion,  and  fairly  and  honestly 
lending  it  to  a person  whom  he  considered  respon- 
sible. 

§ 220.  But  the  rule  is  different  as  against  creditors, 
and  although  the  will  may  give  him  power  to  lend 
on  personal  security,  this  will  not  enable  him  even 
as  against  legatees,  to  accommodate  a trader  with  a 
loan  on  his  bond  or  note.  It  is  his  duty  indeed  to 
keep  unemployed  money  invested  in  good  securities  ; 
but  if  he  invests  in  stocks,  he  must  be  careful  to 
select  such  only  as  the  court  will  consider  safe ; and 
if  he  is  prudent,  he  will  not  run  this  risk,  so  long 
as  landed  security  is  to  be  obtained. 

§ 221.  If  any  of  the  debts  are  contested,  they 
must  be  proved  before  the  Surrogate,  in  the  same 
manner  as  before  other  courts,  and  by  similar  legal 
evidence.  Any  party  interested  in  the  estate  may 
produce  evidence,  and  contest  any  claim  that  may 
be  presented  ; and  if  the  executor  or  administrator 
claim  that  the  testator  or  intestate  was  indebted  to 
him,  he  mus£  upon  proving  his  debt,  like  other  cre- 
ditors, not^only  justify  his  claim  by  his  oath,  but  if 


114 


THE  LAW  OF 


it  is  objected  to,  he  must  establish  it,  by  legal  evi- 
dence, in  addition  to  his  own  oath. 

§ 222.  The  hearing  of  the  allegations  and  proofs 
of  the  respective  parties  may  be  adjourned  from 
time  to  time,  as  shall  be  necessary.  And  the  Sur- 
rogate may  appoint  one  or  more  auditors  to  examine 
the  accounts  presented  to  him,  and  to  make  report 
thereon,  subject  to  his  confirmation ; and  may 
make  a reasonable  allowance  to  such  auditors,  not 
exceeding  two  dollars  a day,  to  be  paid  out  of  the 
estate  of  the  deceased.  If  either  party  conceives 
himself  aggrieved  by  the  auditors’  report,  he  may  ob- 
ject to  the  confirmation  of  the  same,  and  the  surro- 
gate will  thereupon  confirm  or  modify  the  report 
as  he  may  deem  just  and  proper,  and  afterwards 
proceed  to  decree  a settlement,  and  distribution 
thereupon, 

§ 223.  The  final  settlement  of  such  account,  and 
the  allowance  thereof  by  the  Surrogate,  or  upon 
appeal,  will  be  deemed  conclusive  evidence  against 
all  creditors,  legatees,  next  of  kin  of  the  deceased, 
and  all  persons  in  any  way  interested  in  the  estate,, 
upon  whom  the  citation  shall  have  been  served, 
either  personally,  or  by  publication,  as  herein  di- 
rected, of  the  following  facts,  and  no  others  : 

1.  That  the  charges  made  in  such  account  for 
moneys  paid  to  creditors,  to  legatees,  to  the  next-of- 
kin,  and  for  necessary  expenses,  are  cofrect : 


EXECUTORS  AND  ADMINISTRATORS. 


115 


2.  That  such  executor  or  administrator  has  been 
charged  all  the  interest  for  moneys  received  by  him, 
and  embraced  in  his  account,  for  which  he  was  le- 
gally accountable : 

3.  That  the  moneys  stated  in  such  account,  as 
collected,  were  all  that  were  collectible,  on  the 
debts  stated  in  such  account,  at  the  time  of  the 
settlement  thereof : 

4.  That  the  allowances  in  such  account,  for  the 
decrease  in  the  value  of  any  assets,  and  the  charges 
therein  for  the  increase  in  such  value,  were  correctly 
made. 

§ 224.  The  Surrogate  will  file  the  vouchers  and 
accounts  that  are  produced  and  rendered  before 
him  ; and  he  is  directed  by  the  statute  to  record 
with  his  decree  a summary  statement  of  the  same, 
as  finally  settled  and  allowed  by  him,  which  is  to  be 
referred  to  and  taken  as  part  of  the  final  decree, 
And  this  decree  is  expressly  limited  by  the  statute, 
so  as  not  to  extend  to  any  case  where  an  executor 
is  liable  to  account  to  a court  of  equity,  by  reason  of 
any  trust  expressly  created  by  any  last  will  or  tes- 
tament. 

§ 225.  If  upon  the  final  settlement  of  the  ac- 
count, it  appears,  that  any  part  of  the  estate  re- 
mains to  be  paid  or  distributed,  the  Surrogate  will 
order  the  payment  and  distribution  of  the  same 
among  the  creditors,  legatees,  widow,  and  next-of- 


116 


THE  LAW  OF 


kin  to  the  deceased,  according  to  their  respective 
rights ; and  in  his  decree  will  settle  and  determine 
all  questions  concerning  any  debt,  claim,  legacy,  be- 
quest or  distributive  share,  to  whom  the  same  shall 
be  payable,  and  the  sum  to  be  paid  to  each  person. 

§ 226.  But  if  on  such  settlement,  any  claim  may 
appear  to  exist  against  the  estate  of  the  deceased, 
which  is  not  then  due,  or  upon  which  a suit  is  then 
pending,  the  Surrogate  will  allow  a sum  sufficient  to 
satisfy  such  claim,  or  the  proportion  to  which  it  may 
be  entitled,  to  be  retained,  for  the  purpose  of  being 
applied  to  the  payment  of  such  claim  when  due,  or 
when  recovered,  or  of  being  distributed  according  to 
law.  The  sum  so  retained  may  be  left  in  the  hands 
of  the  executor  or  administrator,  or  may  be  directed 
by  the  Surrogate  to  be  deposited  in  some  safe  bank, 
to  be  drawn  only  on  the  order  of  the  Surrogate. 

§ 227.  So,  if  any  creditor  has  a security  for  his 
debt,  upon  another  fund,  which  is  primarily  liable 
for  its  payment,  the  Surrogate  should  compel  such 
creditor  to  exhaust  his  remedy  against  that  fund, 
and  only  to  come  in  as  against  the  personal  estate  for 
the  deficiency.  And  when  it  is  necessary  to  make 
a distribution  of  the  personal  estate  of  the  deceased, 
before  such  deficiency  can  be  ascertained,  he  should 
direct  a portion  of  the  property  to  be  retained,  to 
meet  the  contingent  claim  for  such  deficiency.  But 
before  the  Surrogate  allows  any  sum  to  be  retained 


EXECUTORS  AND  ADMINISTRATORS. 


117 


for  the  payment  of  outstanding  claims,  he  will  re- 
quire proof  of  the  existence  of  such  claims  against 
the  estate. 

§ 228.  In  such  order  the  Surrogate  may  upon 
the  consent  in  writing  of  the  parties  who  shall  have 
appeared,  direct  the  delivery  of  any  personal  pro- 
perty which  shall  not  have  been  sold,  and  the  as- 
signment of  any  mortgages,  bonds,  notes,  or  other 
demands,  not  yet  due  ; among  those  entitled  to  pay- 
ment or  distribution,  in  lieu  of  so  much  money  as 
such  property  or  securities  may  be  worth,  to  be  as- 
certained by  the  appraisement  and  the  oath  of 
such  persons  as  the  Surrogate  shall  appoint  for 
that  purpose. 

§ 229.  Every  person  to  whom  any  such  securities 
may  be  assigned,  is  authorized  to  sue  and  recover 
upon  them  at  his  own  cost  and  risk,  in  the  same 
manner  and  under  the  same  circumstances,  that  the 
executor  or  administrator  might  have  done,  while 
they  remained  under  his  control. 

§ 230.  Upon  the  settlement  of  their  accounts* 
executors  and  administrators  are  entitled  to  the  fol- 
lowing compensation  : 

1.  For  receiving  and  paying  out  all  sums  of 
money,  not  exceeding  one  thousand  dollars,  at  the 
rate  of  five  per  cent. 

2.  For  any  sums,  exceeding  one  thousand  dol- 

11 


118 


THE  LAW  OF 


lars,  and  not  amounting  to  five  thousand  dollars, 
two  and  a half  per  cent. 

3.  For  all  sums  above  five  thousand  dollars,  one 
per  cent. 

And  in  all  cases  such  allowance  for  their  actual 
and  necessary  expenses,  as  shall  appear  just  and 
reasonable. 

§ 231.  The  commission  must  be  charged  upon 
the  aggregate  of  the  items  received,  and  not  upon 
each  item.  He  is  entitled  to  retain  in  his  hands, 
the  commissions  upon  all  moneys  received  and  paid 
out,  as  the  same  are,  from  time  to  time,  received  and 
paid  out,  or  in  other  words,  he  is  entitled  to  his 
commissions  as  they  are  earned.  And  where  he 
assigns  bonds  and  mortgages,  or  other  securities,  or 
transfers  other  property  to  the  creditors,  heirs,  de- 
visees, legatees  or  next-of-kin,  he  is  entitled  to  the 
same  commission  as  if  he  had  in  fact  converted  them 
into  money,  and  had  paid  out  the  avails.  This 
however  would  not  authorize  a charge  for  com- 
missions upon  the  whole  amount  of  an  account, 
which  should  be  reduced  by  set  off  had  against  it  by 
the  debtor ; the  executor  or  administrator,  in  such 
case,  could  only  charge  commissions  upon  the  bal- 
ance actually  due,  as  that  would,  in  fact,  be  the 
amount  received,  or  paid,  as  the  case  might  be. 

§ 232.  Wherever  legal  advice  is  proper  to  direct 


EXECUTORS  AND  ADMINISTRATORS. 


119 


the  course  of  the  executor,  to  bring  suits  or  to  de- 
fend them,  or  where  counsel  is  employed  to  obtain 
what  is  honestly  supposed  to  be  the  rights  of  the 
estate,  the  executor  is  justified  in  paying  reasonable 
attorney  or  counsel  fees.  But  where  he  neglects  to 
settle,  and  is  sued  by  creditors,  or  cited  by  the  heirs, 
and  is  obliged  to  employ  counsel  to  defend  himself, 
the  counsel  fees  ought  not  to  come  out  of  the  estate. 
If,  however,  the  heirs  are  asking  from  him  what  is 
illegal  or  unreasonable,  he  may  defend  this,  and  the 
heirs  must  bear  the  expense  of  their  unjust  claim. 

§ 233.  With  respect  to  the  allowance  of  interest, 
upon  sums  advanced  by  him  for  the  purposes  of  his 
trust,  it  is  held  that  if  he  borrows  money,  or  advances 
it  out  of  his  own  pocket,  to  pay  debts  of  his  testator 
which  carry  interest ; or  to  satisfy  some  of  the  cre- 
ditors who  threaten  to  bring  actions,  he  is  entitled 
to  an  allowance  of  interest,  for  the  money  so  ad- 
vanced or  borrowed.  But  in  general  a charge  of 
interest  made  by  an  executor  or  administrator,  will 
be  received  with  caution,  and  the  circumstances 
which  are  alleged  for  its  justification,  will  be  care- 
fully examined. 

§ 234.  He  will  be  allowed  for  moneys  paid  for  the 
services  of  a clerk,  where  from  the  peculiar  situation 
of  the  property,  or  from  its  nature,  it  was  beneficial 
to  the  estate  to  subject  it  to  that  extra  expense ; but 
in  ordinary  cases,  such  charge  would  not  be  reason- 


120 


THE  LAW  OF 


able,  as  it  is  the  duty  of  the  executor  or  administra- 
tor to  give  his  personal  attention  to  the  business  of 
the  estate.  For  his  own  services,  however  arduous, 
the  executor  or  administrator  must  be  confined  to 
the  allowance,  by  way  of  commission  on  the  moneys 
received  and  disbursed  by  him  in  full  for  all  his 
services  in  discharging  the  trust.  He  can,  in  no 
case,  charge  for  the  time  employed  by  him  in  and 
about  the  business  of  the  estate,  however  inade- 
quate the  compensation  may  be  by  way  of  commis- 
sions. And  where  charges  are  made  for  expenses, 
they  must  be  confined  to  expenses  actually  and 
necessarily  paid  or  incurred. 

§ 235.  The  statute  also  provides  that,  where 
any  provision  shall  be  made  by  any  will,  for  specific 
compensation  to  an  executor,  the  same  shall  be 
deemed  a full  satisfaction  for  his  services,  in  lieu  of 
the  allowance  aforesaid,  or  his  share  thereof,  unless 
such  executor  shall,  by  a written  instrument  to  be 
filed  with  the  Surrogate,  renounce  all  claim  to  such 
specific  legacy. 


EXECUTORS  AND  ADMINISTRATORS. 


121 


CHAPTER  VI. 

OF  PROCEEDINGS  TO  SELL  REAL  ESTATE. 

§ 236.  Executors  and  administrators,  as  sudi> 
have  no  control  over,  or  interest  in,  the  real  estate 
of  their  testator  or  intestate.  They  can  only  derive 
authority  to  dispose  of  it  in  any  manner,  from  the 
express  terms  of  the  will,  or  by  virtue  of  the  statutes 
which  have  from  time  to  time  been  passed  upon  that 
subject.  The  executor,  in  case  the  will  contains  no  ex- 
press authority  to  sell  the  real  estate  of  the  deceased, 
or  the  administrator  in  the  event  of  his  dying  intestate, 
may  if  necessary  for  the  purpose  of  paying  debts, 
apply  to  the  Surrogate  for  an  order  to  sell ; or  if 
they  neglect  to  make  such  an  application,  a creditor 
may  apply  for  an  order  requiring  them  to  make  such 
a sale.  The  statute  enacts  that  after  the  executors 
or  administrators  of  a deceased  person  shall  have 
made  and  filed  an  inventory,  if  they  discover  the 
personal  estate  of  the  testator  or  intestate  to  be  in- 
sufficient to  pay  his  debts,  they  may  at  any  time 
within  three  years  after  the  granting  of  letters  tes- 
tamentary or  of  administration,  apply  to  the  Surro- 
gate for  authority  to  lease,  mortgage  or  sell  so 
much  of  the  real  estate  as  may  be  necessary  to  pay 
such  debts. 


11* 


122 


THE  LAW  OF 


§ 237.  The  statute  also  enacts,  that  if  after  the 
rendering  of  an  account  by  an  executor  or  administra- 
tor to  a Surrogate,  it  shall  appear  that  there  are  not 
sufficient  assets  to  pay  the  debts  of  the  deceased,  the 
Surrogate,  upon  the  application  of  any  creditor,  made 
at  any  time  after  the  granting  of  letters  testamentary 
or  of  administration,  shall  grant  an  order  for  such 
executor  or  administrator  to  show  cause  why  he 
should  not  be  required  to  mortgage,  lease  or  sell  the 
real  estate  of  the  deceased  for  the  payment  of  his 
debts ; but  he  shall  not  assign  for  cause  why  he 
should  not  be  ordered  to  sell  real  estate,  that  the 
time  within  which  he  is  allowed  to  sell  the  same  has 
expired.  And  where  a judgment  or  decree  has  been 
recovered  against  an  executor  or  administrator  for 
any  debt  due  from  the  deceased,  and  there  are  not 
sufficient  assets  in  the  hands  of  such  executor  or  ad- 
ministrator to  satisfy  the  same,  the  debt  for  which 
the  judgment  or  decree  was  obtained,  shall,  not- 
withstanding the  form  of  such  judgment  or  decree, 
remain  a debt  against  the  estate  of  the  deceased,  to 
the  same  extent  as  before,  and  to  be  established  in 
the  same  manner  as  if  no  such  judgment  or  decree 
had  been  recovered.  Provided,  that  where  such 
judgment  or  decree  has  been  obtained  upon  a trial 
or  hearing  upon  the  merits,  the  same  shall  be 
prima  facie  evidence  of  such  debt  before  the  Sur- 
rogate. 


EXECUTORS  AND  ADMINISTRATORS. 


123 


§ 238.  When  the  application  is  made  by  the  exe- 
cutor or  administrator,  it  must  be  verified  by  his  oath, 
and  must  set  forth  the  amount  of  the  personal  pro- 
perty which  has  come  to  his  hands,  and  the  appli- 
cation  thereof ; also  the  debts  outstanding  against 
the  testator,  or  intestate,  as  far  as  they  can  be  as- 
certained ; with  a description  of  all  the  real  estate 
of  which  the  testator  or  intestate  died  seised,  with 
the  value  of  the  respective  portions  or  lots,  and 
whether  occupied  or  not,  and  if  occupied,  the  names 
of  the  occupants  ; and  also,  the  names  and  ages  of 
the  devisees,  and  of  the  heirs  of  the  deceased. 

§ 239.  If  any  of  the  heirs  or  devisees  are  minors, 
the  Surrogate  before  taking  any  other  proceeding, 
will  appoint  some  disinterested  freeholder,  guardian 
of  said  minors,  for  the  sole  purpose  of  taking  care  of 
their  interest  in  the  matter.  If  the  minors  reside  in 
the  county,  they  must  have  ten  days  notice  of  the 
intention  to  apply  for  the  appointment  of  a guardian, 
in  order  that  they  may  be  heard  in  the  selection  of 
a guardian.  Where  a minor,  however,  has  a general 
guardian  residing  in  the  county,  there  will  be  no  ne- 
cessity for  appointing  a special  guardian  for  the  pur- 
poses of  this  motion.  Notice  is  also  to  be  given  to 
the  widow  of  the  deceased. 

§ 240.  The  Surrogate  will,  at  the  time  appointed, 
proceed  to  hear  the  proofs  and  allegations  of  the 
parties,  and  if  satisfied  that  the  debts  are  justly  due 


124 


THE  LAW  OF 


and  owing,  and  are  not  secured  by  judgment  or 
mortgage  upon,  or  expressly  charged  upon  the  es- 
tate of  the  deceased  ; or  if  such  debts  be  secured  by 
a mortgage  or  charge  upon  a portion  of  the  estate, 
then  that  the  remedies  of  the  creditor,  by  virtue  of 
such  mortgage  or  charge,  have  been  exhausted,  that 
the  personal  estate  of  the  deceased  is  insufficient  for 
the  payment  of  such  debts,  and  that  the  whole  of 
such  estate  which  could  have  been  applied  to  the 
payment  of  the  debts  of  the  deceased,  has  been  duly 
applied  for  that  purpose,  he  will  order  a sale. 

§ 241.  The  Surrogate  may,  in  his  discretion, 
order  such  mortgage,  lease  or  sale  to  be  made,  al- 
though the  whole  of  the  personal  property  of  the 
deceased,  which  has  come  to  the  hands  of  the  ex- 
ecutor or  administrator,  has  not  been  applied  to  the 
payment  of  debts.  But  the  Surrogate,  before 
making  any  such  order,  must  have  satisfactory  evi- 
dence that  the  executor  or  administrator  has  pro- 
ceeded with  reasonable  diligence  in  converting  the 
personal  property  of  the  deceased  into  money,  and 
applying  the  same  to  the  payment  of  debts. 

§ 242.  If  all  the  money  required  to  pay  the  debts 
can  be  advantageously  raised  by  a lease  or  mort- 
gage, he  will  not  order  an  absolute  sale ; and  no 
lease  will  be  ordered  that  shall  continue  for  a longer 
time  than  until  the  youngest  person  interested  in  the 
estate  to  be  leased  shall  become  twenty-one  years 


EXECUTORS  AND  ADMINISTRATORS. 


125 


of  age,  so  if  a part  of  the  property  can  be  sold  with- 
out manifest  prejudice  to  the  heirs  or  devisees,  then 
the  whole  will  not  be  sold  ; but  if  it  is  for  the  benefit 
of  the  estate  that  the  whole  should  be  sold,  it  will  be 
ordered,  although  it  may  be  more  than  is  necessary 
to  pay  such  debts. 

§ 243.  Before  granting  any  order  for  mortgaging, 
leasing  or  selling  land,  the  Surrogate  will  require 
from  the  executor  or  administrator  applying  for  the 
same,  a bond  to  the  people  of  the  state,  with  suf- 
ficient sureties,  in  a penalty  double  the  amount  to  be 
raised,  conditioned  for  the  faithful  application  of  the 
moneys,  arising  from  the  mortgage,  lease,  or  sale,  to 
the  payment  of  the  debts  established  before  the  Sur- 
rogate, on  granting  the  order,  and  for  accounting  for 
such  moneys  whenever  required  by  such  Surrogate  ; 
or  by  any  court  of  competent  authority. 

§ 244.  In  case  of  the  refusal  or  neglect  of  the  ex- 
ecutor or  administrator  to  execute  such  a bond,  with- 
in a reasonable  time,  the  Surrogate  will  appoint  a 
disinterested  freeholder  to  execute  such  mortgage  or 
lease,  or  to  make  such  sale,  who  shall  execute  a 
bond  similar  to  that  required  of  the  executor  or  ad- 
ministrator, in  whose  place  he  will  be  appointed  ; 
and  in  making  such  appointment  the  Surrogate  will 
give  preference  to  any  person  who  shall  have  been 
nominated  by  the  creditors. 

§ 245.  The  executor  or  administrator  must  make 


126 


THE  LAW  OF 


a report  of  his  proceedings  to  the  Surrogate  imme- 
diately after  the  sale,  who  is  directed  to  examine 
into  the  matter,  and  may  hear  witnesses  in  relation 
thereto ; and  if  he  shall  be  of  opinion  that  the  pro- 
ceedings were  unfair,  or  that  the  sum  bid  is  dispro- 
portionate to  the  value,  and  that  a sum  exceeding 
such  bid  by  at  least  ten  per  cent,  exclusive  of  the  ex- 
penses of  a new  sale,  may  be  obtained,  he  will  vacate 
the  sale,  and  direct  another  to  be  had ; but  if  other- 
wise, and  it  appears  that  the  sale  was  legally  made 
and  fairly  conducted,  he  must  make  an  order  con- 
firming the  sale,  and  directing  the  conveyance  to  be 
executed. 

§ 246.  The  money  arising  from  a lease  or  mort- 
gage is  received  by  the  executor  or  administrator, 
and  he  applies  the  same  to  pay  debts ; but  when 
the  whole  or  any  part  of  the  real  estate  is  sold,  the 
proceeds  of  sale  must  be  brought  into  the  Surrogate’s 
office,  for  the  purpose  of  distribution,  and  must  be 
retained  by  him  for  that  purpose.  He  first  pays  the 
expenses  of  the  sale ; next  satisfies  the  widow’s 
claim  for  dower,  either  by  paying  her  a gross  sum 
equal  to  the  value  of  her  annuity  therein,  or  by  in- 
vesting one-third  of  the  said  moneys  in  permanent 
securities  on  annual  interest,  in  his  name  of  office,  for 
her  benefit  during  life ; and  then  proceeds  to  dis- 
charge the  debts  according  to  their  established  legal 
order.  If  any  surplus  remains,  he  will,  of  course. 


EXECUTORS  AND  ADMINISTRATORS. 


127 


distribute  it  among  the  several  persons  interested  in 
the  estate,  in  proportion  to  their  respective  rights  in 
the  premises  sold. 

§ 247.  A Surrogate’s  order  for  the  payment  of 
debts,  cannot  ordinarily  be  impeached,  even  for 
fraud.  If  the  Surrogate  obtains  jurisdiction,  by  the 
presentment  of  an  account  of  the  estate  and  debts  of 
the  deceased,  his  adjudication  that  the  personal  es- 
tate is  insufficient  for  the  payment  of  the  debts,  fol- 
lowed by  an  order  of  sale,  is  conclusive  in  any  col- 
lateral proceeding.  Such  an  adjudication  can  only 
be  examined  on  an  appeal,  nor  will  evidence  of  an 
abuse  of  power  by  administrators  be  admitted  to 
defeat  the  title  of  a purchaser,  under  a Surrogate’s 
order  of  sale.  But  a contract  by  an  administrator 
to  convey  lands  of  the  intestate,  when  a Surrogate’s 
order  of  sale  can  be  obtained,  does  not  vest  an  in- 
terest, though  an  order  be  afterwards  obtained  ; for 
the  administrator  had  no  interest  in  the  lands  to  sell, 
and  any  contract  made  by  him  is  therefore  void,  and 
cannot  be  enforced  either  at  law  or  in  equity. 


128 


THE  LAW  OF 


CHAPTER  VII. 

OF  GUARDIANS  APPOINTED  BY  THE  SURROGATE. 

§ 248.  As  all  persons,  whether  male  or  female, 
under  the  age  of  twenty-one  years,  are  in  contem- 
plation of  law,  incapable  of  making  a contract  of  any 
description,  or  of  taking  charge  of  or  controling  pro- 
perty, it  frequently  becomes  necessary  in  the  settle- 
ment of  estates,  to  provide  some  person  of  mature 
age  and  understanding  to  take  charge  of  the  person 
and  property  of  infants. 

§ 249.  The  father,  and  on  his  death  the  mother, 
is  the  guardian,  by  nature,  of  their  infant  children  ; 
this  guardianship  extends  to  the  age  of  twenty-one 
years,  and  includes  the  custody  of  the  person  of  the 
child,  but  does  not  extend  to  its  property.  Every 
father,  whether  of  full  age,  or  a minor,  of  a child  like- 
ly to  be  born,  or  of  any  living  child  under  the  age  of 
twenty-one  years,  and  unmarried,  may,  by  his  deed 
or  last  will,  duly  executed,  dispose  of  the  custody 
and  tuition  of  such  child  during  its  minority,  or  for 
any  less  time,  to  any  person  or  persons,  in  possession, 
or  remainder.  A guardian  thus  appointed  will  con- 
tinue in  his  guardianship  until  the  infant  attains  the 
age  of  twenty-one  years,  even  although  the  ward  be 
a female  and  marry  under  that  age. 


EXECUTORS  AND  ADMINISTRATORS. 


129 


§ 250.  Every  such  disposition,  from  the  time  it 
takes  effect,  will  vest  in  the  person  or  persons  to 
whom  it  shall  be  made,  all  the  rights  and  powers, 
and  subject  him  or  them  to  all  the  duties  and  obli- 
gations of  a guardian  of  the  minor,  and  will  be  valid 
and  effectual  against  every  other  person  claiming  the 
custody  or  tuition  of  such  minor,  as  guardian  in 
soccage  or  otherwise.  Any  person  to  whom  the 
custody  of  a minor  is  so  disposed  of,  may  take  the 
custody  and  tuition  of  such  minor,  and  may  main- 
tain all  proper  actions,  for  the  wrongful  taking  or  de- 
tention of  the  minor,  and  recover  damages  in  such 
actions,  for  the  benefit  of  his  ward.  And  a tes- 
tamentary guardianship  of  this  description  is  not 
under  the  control  of  the  Surrogate. 

§ 251.  Such  a guardian  may  also  take  the  custody 
and  management  of  the  personal  estate  of  the 
minor,  and  the  profits  of  his  real  estate,  during  the  time 
for  which  such  disposition  shall  have  been  made, 
and  may  bring  such  actions  in  relation  thereto,  as 
a guardian  in  soccage  might  by  law.  He  may  also 
bring  ejectment  in  his  own  name,  to  recover  pos- 
session of  the  premises  belonging  to  his  ward.  He 
may  lease  the  real  estate,  during  the  minority  of  his 
ward,  but  no  longer.  He  cannot  sell  any  part  of  the 
real  estate,  without  the  authority  of  the  Supreme 
Court,  but  he  may  sell  the  personal  property  with- 
out application  to  any  court. 

12 


130 


THE  LAW  OF 


§ 252.  But  if  no  guardian  has  been  appointed,  the 
statute  provides  that  in  every  case  where  no  guardian 
shall  have  been  appointed  by  the  father,  by  a 
deed,  or  will,  the  Surrogate  of  the  county  where 
the  residence  of  any  minor  may  be,  shall  have  au- 
thority to  appoint  a general  guardian  for  such 
minor. 

§ 253.  If  the  infant  be  of  the  age  of  fourteen 
years,  or  upwards,  he  alone  can  make  application 
for  the  appointment  of  a guardian.  But  if  such  minor 
be  under  the  age  of  fourteen  years,  any  relative  or 
other  person , in  his  behalf,  may  apply  to  the  Surro- 
rogate  of  the  county  where  such  minor  shall  reside, 
for  the  appointment  of  a guardian  of  the  minor. 
The  petition  should  state  the  name  of  the  minor, 
his  age  and  residence,  the  name  of  the  person  with 
whom  he  resides,  and  should  give  the  names  and 
residence  of  his  next-of-kin,  so  far,  at  least,  as  to 
show  who  would  be  entitled  to  his  property  in  case 
of  his  death,  and  should  also  state  the  amount  of 
the  personal  estate  of  the  minor,  and  the  yearly  value 
of  the  rents,  profits  and  income  of  his  real  estate. 

§ 254.  Where  an  estate  in  lands  becomes  vested  in 
an  infant,  the  guardianship  of  such  infant,  with  the 
rights,  powers  and  duties  of  a guardian  in  soccage, 
will  belong:  1.  To  the  father  of  the  infant.  2.  If 
there  be  no  father,  to  the  mother.  3.  If  there  be 
no  father,  or  mother,  to  the  nearest  and  eldest  rela- 


EXECUTORS  AND  ADMINISTRATORS. 


131 


tive  of  full  age,  not  being  under  any  legal  incapacity  ;; 
and  as  between  relatives  of  the  same  degree,  of  con- 
sanguinity, males  will  be  preferred. 

§ 255.  Before  appointing  any  person  a guardian 
of  a minor,  the  Surrogate  will  require  of  such 
person  a bond  to  the  minor,  with  sufficient  security, 
to  be  approved  by  him,  in  a penalty  double  the 
amount  of  the  personal  estate,  and  of  the  value  of 
the  rents  and  profits  of  the  real  estate,  conditioned 
that  such  person  will  faithfully,  in  all  things,  dis- 
charge the  duties  of  a guardian  to  such  minor,  ac- 
cording to  law,  and  that  he  will  render  a true  and 
just  account  of  all  moneys  and  property  received  by 
him,  and  of  the  application  thereof,  and  of  his 
guardianship  in  all  respects,  to  any  court  having  cog- 
nizance thereof,  when  thereunto  required. 

§ 256.  The  bond,  or  other  security,  must  be  re- 
tained by,  and  filed  with,  the  Surrogate,  among  the 
papers  of  his  office,  and  in  case  of  a breach  of  the 
condition,  it  may  be  prosecuted  in  the  name  of  the 
ward,  although  he  may  not  have  arrived  at  full  age* 
by  some  proper  person,  as  his  next  friend,  whenever 
the  Surrogate  shall  direct. 

§ 257.  Whenever  it  shall  be  made  to  appear  to 
the  Surrogate,  that  the  sureties  of  the  guardian  are 
becoming  insolvent ; or  that  they  have  removed  or  are 
about  to  remove  from  this  state,  or  that  for  any 
other  cause  they  are  insufficient,  and  he  shall  be 


132 


THE  LAW  OF 


satisfied  tliat  the  matter  requires  investigation,  he 
will  issue  a citation  to  the  guardian,  requiring  him 
to  appear  before  the  Surrogate  at  a time  and  place 
to  be  therein  specified,  to  show  cause  why  he  should 
not  give  further  sureties,  or  be  removed  from  his 
guardianship. 

§ 258.  The  citation  must  be  served  personally 
on  the  guardian  to  whom  it  may  be  directed,  at  least 
fourteen  days  before  the  return  thereof ; or  if  such 
guardian  shall  have  absconded,  or  concealed  him- 
self, so  that  such  citation  cannot  be  personally  served, 
it  may  be  served  by  leaving  a copy  thereof  at  the 
last  place  of  residence  of  the  guardian.  And  in 
case  he  has  removed  from  the  state,  the  citation 
may  be  served  by  publishing  the  same  in  the  state 
paper  for  four  weeks. 

§ 259.  On  the  return  of  the  citation,  or  at  such 
other  time  as  the  Surrogate  shall  appoint,  he  will 
proceed  to  hear  the  proof  and  allegations  ; and  if 
it  satisfactorily  appears  that  the  sureties  are  for 
any  cause  insufficient,  the  Surrogate  may  make  an 
order  requiring  such  guardian  to  give  further  sure- 
ties in  the  usual  form,  within  a reasonable  time,  to 
be  prescribed  by  the  Surrogate. 

§ 260.  If  the  guardian  neglect  to  give  further 
sureties  to  the  satisfaction  of  the  Surrogate,  within 
the  time  prescribed,  the  Surrogate  may,  by  an  order 


EXECUTORS  AND  ADMINISTRATORS. 


133 


to  be  duly  entered  in  his  minutes,  remove  him  from 
his  trust. 

§ 261.  The  guardian  is  required,  annually,  after 
his  appointment,  so  long  as  any  part  of  the  estate, 
or  the  income  or  proceeds  thereof,  remains  in  his 
hands  or  under  his  control,  to  file  in  the  office  of  the 
Surrogate  who  appointed  him,  an  inventory  and  ac- 
count, under  oath,  of  his  guardianship,  and  of  the 
amount  of  property  received  by  him  and  remaining 
in  his  hands,  or  invested  by  him,  and  the  manner 
and  nature  of  such  investment,  and  his  receipts  and 
disbursements,  in  form  of  debtor  and  creditor. 

§ 262.  The  inventory  and  account  may  be  verified 
before  any  Commissioner  of  Deeds,  Supreme  Court 
Commissioner,  Judge  of  County  Courts  or  Justice  of 
the  Peace.  If  the  guardian  neglect  to  file  such  account 
or  inventory,  for  three  months  after  the  same  should 
have  been  filed,  the  Surrogate  is  required  to  proceed 
to  compel  him  to  do  so,  and  the  cost  of  such  pro- 
ceedings will  be  charged  to  such  guardian  personally. 
Should  the  Surrogate  be  satisfied,  upon  examining 
such  account  and  inventory,  that  the  interest  of  the 
ward  requires  that  a more  full  and  satisfactory  ac- 
count should  be  given,  he  may  require  the  guardian 
to  do  so. 

§ 263.  Every  guardian  appointed  by  the  Surrogate, 
has  the  same  powers  as  a testamentary  guardian ; 

12* 


134 


THE  LAW  OF 


and  every  person  so  appointed  guardian  of  a minor, 
under  the  age  of  fourteen  years,  continues  the 
guardian,  and  is  responsible  as  such,  notwithstand- 
ing the  minor  shall  arrive  at  that  age,  and  until 
another  guardian  shall  be  appointed,  or  such  first 
guardian  be  discharged. 

§ 264.  Every  guardian,  whether  testamentary  or 
appointed  by  the  Surrogate,  must  safely  keep 
the  things  that  he  may  have  in  his  custody  be- 
longing to  his  ward,  and  the  inheritance  of  his 
ward,  and  not  make  or  suffer  any  waste,  sale, 
or  destruction  of  such  things  or  of  such  inherit- 
ance, but  must  keep  up  and  sustain  the  houses,  gar- 
dens and  other  appurtenances  to  the  lands  of  his 
ward,  by  and  with  the  issues  and  profits  thereof,  or 
with  such  other  moneys  belonging  to  his  ward,  as 
shall  be  in  his  hands.  And  he  is  bound  to  deliver  the 
same  to  his  ward,  when  he  comes  to  his  full  age,  in 
as  good  order  and  condition,  at  least,  as  the  guar- 
dian received  the  same,  inevitable  decay  and  injury 
only  excepted ; and  he  must  answer  to  his  ward  for 
the  issues  and  profits  of  real  estate  received  by  him, 
by  a lawful  account. 

§ 265.  If  the  guardian  has  been  guilty  of  any 
negligence  in  the  keeping  or  disposition  of  the  in- 
fant’s money,  whereby  the  estate  has  incurred  loss, 
he  will  be  obliged  to  sustain  that  loss.  He  must  not 
convert  the  personal  estate  into  real,  or  buy  land 


EXECUTORS  AND  ADMINISTRATORS. 


135 


with  the  infant’s  money,  without  the  direction  of  the 
court.  If  he  puts  the  ward’s  money  into  trade,  the 
ward  will  be  entitled  to  elect  to  take  the  profits  of 
the  trade,  or  the  principal,  with  compound  interest, 
to  meet  the  profits,  when  the  guardian  will  not  dis- 
close them.  So  if  he  neglects  to  put  the  ward’s 
money  at  interest,  but  negligently,  and  for  an  unrea- 
sonable time,  suffers  it  to  be  idle,  or  mingles  it  with 
his  own,  the  court  will  charge  him  with  simple  in- 
terest, and  in  case  of  gross  delinquency,  with  com- 
pound interest. 

§ 2 66.  The  general  guardian  has  no  authority  to 
receive  a legacy  given  to  his  ward,  where  it  exceeds 
fifty  dollars,  without  the  direction  of  the  Surrogate ; 
in  which  case,  the  Surrogate  is  directed,  to  require 
him  to  give  security  to  the  minor,  to  be  approved  by 
the  Surrogate,  for  the  faithful  application  and  ac- 
counting for  such  legacy.  And  the  same  rule  ap- 
plies in  regard  to  the  distributive  share  due  the 
minor,  as  next-of-kin,  from  the  estate  of  any  intes- 
tate. The  guardian  will  be  entitled  to  letters  of  ad- 
ministration in  right  of  his  wrard,  in  all  cases  where 
the  ward  would  be  entitled,  were  he  of  full  age. 

§ 267.  The  general  guardian  may  be  cited  to  ac- 
count before  the  Surrogate  who  appointed  him,  in 
the  same  manner  as  administrators,  upon  the  appli- 
cation of  the  ward,  or  any  relative  of  the  ward, 
and  on  good  cause  being  shown,  may  be  compelled 


136 


THE  LAW  OF 


to  account  in  the  same  manner  as  an  administrator* 
Upon  the  ward’s  arrival  at  full  age,  he  is  entitled  to* 
compel  such  account  without  showing  any  cause. 
The  guardian  may  also  be  required  to  account  im- 
mediately in  case  of  his  removal  from  his  guardian- 
ship. 

§ 268.  After  the  ward  arrives  at  full  age,  or  after 
the  guardian  has  been  superseded  by  the  appoint- 
ment of  another,  the  guardian  may  apply  to  the 
Surrogate  who  appointed  him,  for  a citation  to  his 
ward,  or  to  the  new  guardian,  to  attend  the  settle- 
ment of  his  accounts  before  the  Surrogate.  The 
Surrogate  will  then  proceed  to  examine,  audit  and 
settle  the  account ; and  such  settlement,  unless  an 
appeal  shall  be  brought  therefrom,  will  be  final  and 
conclusive. 

§ 269.  The  guardian  may  be  removed  by  the 
Surrogate  who  appointed  him,  upon  his  refusing  or 
neglecting  to  give  additional  security,  when  required 
to  do  so.  He  may  also  be  removed  by  the  Surro- 
gate for  incompetency,  or  for  wasting  the  real  or 
personal  estate  of  his  ward,  or  for  misconduct  in  re- 
lation to  his  duties  as  guardian  ; upon  the  application 
of  the  ward,  or  of  any  relative  in  his  behalf,  or  of 
the  surety  of  such  guardian.  In  all  the  cases  above 
mentioned,  the  Surrogate  who  appointed  the 
guardian,  has  ample  authority  to  examine  into  the 
circumstances  of  the  case,  to  issue  subpoenas  foiv 


EXECUTORS  AND  ADMINISTRATORS. 


137 


and  compel  the  attendance  of  witnesses,  in  behalf  of 
either  party,  and  to  decide  upon  the  matter  upon 
the  merits. 

§ 270.  The  guardian  may  also  apply  to  the  Sur- 
rogate who  appointed  him,  for  liberty  to  resign  his 
trust ; he  must  in  such  case,  set  forth  the  reasons 
why  the  application  is  made,  and  verify  the  state- 
ment by  his  own  oath.  Notice  must  then  be  given 
to  the  next-of-kin  of  the  ward,  if  there  be  any  re- 
siding in  the  same  county,  and  the  Surrogate  will 
appoint  some  discreet  person  to  take  care  of  the 
interests  of  the  ward ; and  any  person,  although  not 
appointed  by  the  Surrogate  may  appear  on  behalf 
of  the  ward. 

§ 271.  Upon  appearing  before  the  Surrogate,  and 
rendering  a full,  just,  and  true  account,  in  writing, 
of  all  his  receipts  and  payments  on  account  of  the 
ward,  and  of  all  the  books,  papers,  money,  choses  in 
action,  and  other  property  of  the  ward,  which  may 
be  in  his  hands,  or  under  his  control,  verified  by  his 
oath,  and  by  such  other  evidence  as  the  Surrogate 
may  require,  and  the  Surrogate  is  satisfied  that  the 
guardian  has,  in  all  respects,  conducted  himself 
honestly  in  the  execution  of  his  trust;  that  he  has 
rendered  a full,  just,  and  true  account ; and  that  the 
interest  of  the  ward  would  not  be  prejudiced  by 
allowing  the  guardian  to  resign  his  trust,  he  may  pro- 
ceed to  appoint  a new  guardian  for  such  ward,  and 


138 


THE  LAW  OF 


order  that  the  former  guardian  deliver  over  all  the 
books,  papers,  moneys,  choses  in  action,  or  other 
property  of  the  ward,  to  such  new  guardian,  and 
that  he  take  duplicate  receipts  therefor.  Upon 
filing  one  of  such  receipts  with  the  Surrogate,  he 
will  make  an  order  discharging  him  from  any  fur- 
ther care  of  the  ward  or  his  estate. 

§ 272.  The  account  thus  voluntarily  rendered  to 
the  Surrogate,  by  the  guardian,  is  not  conclusive 
upon  the  ward,  or  upon  the  new  guardian,  but 
either  may  have  a further  account  of  all  matters  con- 
nected with  the  trust  of  such  former  guardian,  be- 
fore he  was  permitted  to  resign  the  same ; and  in 
relation  to  all  such  matters,  the  sureties  of  the 
former  guardian  remain  liable,  in  the  same  manner 
and  to  the  same  extent  as  though  such  order  had 
not  been  made  discharging  the  former  guardian. 

§ 273.  The  guardian  may  also  settle  with  his  ward 
after  he  arrives  of  age ; without  appearing  be- 
fore the  Surrogate ; but  such  settlement  will 
not  be  conclusive  upon  the  ward,  in  ordinary  cases,, 
until  a year  from  the  time  he  arrives  at  age.  Guar- 
dians are  allowed  in  a settlement  of  their  accounts 
for  their  reasonable  expenses,  and  the  same  rate  of 
compensation  for  services  as  is  provided  by  law  for 
executors. 


EXECUTORS  AND  ADMINISTRATORS. 


139 


CHAPTER  VIII. 

PRACTICAL  FORMS  AND  DIRECTIONS. 

§ 274.  Applied  tion  for  Letters  of  Ad  ministration. 
Surrogate’s  Court.— County  of  Kings. 

In  the  matter  of  the  Administration  ) 
of  the  goods  and  chattels  of  > 

John  Thompson,  deceased.  \ 


To  Jesse  C.  Smith,  Esq.,  Surrogate  of  Kings. 

The  petition  of  Mary  Thompson,  of  the  city  of  Brook- 
lyn, respectfully  showeth,  that  she  is  the  widow  of  John 
Thompson,  late  of  said  city,  merchant,  deceased,  who 
died  in  said  city  on  the  15th  day  of  October  last  past, 
without  leaving  any  last  will  and  testament,  according 
to  the  best  of  your  petitioner’s  information  and  belief. 
That  the  value  of  the  personal  property  of  which  he  died 
possessed  does  not,  according  to  the  best  of  her  informa- 
tion and  belief,  exceed  in  value  the  sum  of  ten  thousand 
dollars.  That  the  said  intestate  left  kindred  entitled  to 
his  estate,  whose  names  and  places  of  residence  are  as 
follows:  A.,  B.,  C.,  all  minors,  residing  in  said  city  of 
Brooklyn,  and  that  they  are  his  only  next-of-kin  surviving. 
That  the  said  deceased  was  at  or  immediately  previous 
to  his  death,  an  inhabitant  of  the  said  city  of  Brooklyn, 
and  that  your  petitioner  is  of  full  age.  Your  petitioner, 
therefore,  prays  that  administration  on  the  estate  of  the 
said  deceased  may  be  granted  to  her. 

Dated  Nov.  10th,  1850. 

Mary  Thompson. 

\ 275.  County  of  Kings , ss. : — On  this  10th  day  of 
November,  1850,  personally  appeared  before  me  Mary 
Thompson,  named  in  the  foregoing  petition,  and  made 


140 


THE  LAW  OF 


oath  that  she  had  read  the  said  petition,  and  knew  the 
contents  thereof,  and  that  the  same  is  true  of  her  own 
knowledge,  except  as  to  the  matters  therein  stated  to 
he  on  information  and  belief,  and  as  to  those  matters 
she  believes  it  to  be  true.  Jesse  C.  Smith, 

Surrogate  of  Kings . 


§276.  Application  to  prove  a Will . 

County  of  New-York,  > 

Surrogate’s  Court.  \ 

To  A.  W.  Bradford,  Esq.,  Surrogate  of  the  County  of 

New- York. 

The  petition  of  Mary  Jackson  and  William  Jackson, 
both  of  the  city  of  New-York,  respectfully  showeth, 
that  James  Jackson,  late  of  said  city,  merchant,  departed 
this  life  in  said  city  on  the  1st  day  of  October  instant, 
having  first  duly  made  and  executed,  as  your  petitioners 
are  informed  and  believe,  his  last  will  and  testament, 
appointing  your  petitioner,  Mary  Jackson,  the  so’e  ex- 
ecutrix thereof.  That  said  deceased  was,  at  or  immedi- 
ately previous  to  his  death,  an  inhabitant  of  the  city  of 
New-York,  and  that  his  said  will  relates  exclusively  to 
personal  property.  That  your  petitioner,  the  said  Mary, 
is  his  widow,  and  resides  in  said  city  of  New-York;  and 
that  Jane  Jackson,  and  your  petitioner,  William  Jackson, 
both  residing  in  said  city,  are  his  only  children  and  next- 
of-kin,  the  said  William  being  of  full  age,  and  the  said 
Jane  a minor,  having  no  general  guardian.  A our  peti- 
tioners therefore  pray,  that  a special  guardian  may  be 
appointed  to  take  care  of  the  interest  of  the  said  Jane  in 
the  premises ; and  that  thereupon  proof  may  be  taken 
of  the  execution  of  the  said  last  will  and  testament,  and 
letters  testamentary  granted  thereupon;  and  that  such 
other  and  further  proceedings  may  be  had  in  the  premi- 
ses as  shall  be  necessary  and  proper. 

Dated,  &c.  Mary  Jackson, 

William  Jackson. 

Annex  affidavit  of  verification,  similar  to  § 275. 


EXECUTORS  AND  ADMINISTRATORS. 


141 


§ 277.  Consent  to  serve  as  Guardian . 

I,  George  Baker,  of  the  city  of  New-York,  counsellor 
at  law,  do  hereby  consent  to  serve  as  special  guardian  of 
Jane  Jackson,  a minor,  and  one  of  the  children  of  James 
Jackson,  late  of  said  city,  deceased,  for  the  purpose  of 
taking  care  of  the  interests  of  said  minor,  in  the  matter 
of  proving  the  last  will  and  testament  of  the  said  de- 
ceased. 

Dated,  &c.  G.  Baker. 


§ 278.  Consent  that  another  person  be  joined  in  the 
administration . 

I,  Mary  Thompson,  widow  of  John  Thompson,  late  of 
the  city  of  Brooklyn,  deceased,  do  hereby  consent  and 
request  that  Jacob  Waring,  of  said  city,  merchant,  be 
joined  with  me  in  the  administration  of  the  estate  of  the 
said  deceased. 

Dated  the  10th  day  of  Nov.,  1850. 

Mart  Thompson. 


§279.  Form  of  Renunciation . 

I,  Mary  Thompson,  widow  of  John  Thompson,  late  of 
the  city  of  Brooklyn,  deceased,  do  hereby  renounce  all 
my  right  and  claim  to  administer  upon  the  estate  of  tha 
said  deceased. 

Dated,  &c.  Mart  Thompson. 

This  renunciation  must  be  duly  proved  or  acknow- 
ledged before  the  Surrogate,  or  a Justice  or  Commis- 
sioner of  Deeds,  in  the  usual  form. 

13 


142 


THE  LAW  OF 


§ 280.  Another  form  of  Renunciation. 

I,  David  Jones,  of  the  city  of  New-York,  merchant, 
one  of  the  executors  named  in  the  will  of  James  John- 
son, late  of  said  city,  deceased,  do  hereby  renounce  the 
said  appointment,  and  all  right  and  claim  to  letters  tes- 
tamentary of  the  said  will,  or  to  act  as  executor  thereof, 
and  request  the  Surrogate  of  the  county  of  New-York 
to  accept  and  record  this  my  renunciation. 

Dated,  &c. 

Proved  or  acknowledged  as  above. 


§281.  Administrator’s  Bond. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  C.  D. 
and  E.  F.,  all  of  the  city  of  Brooklyn,  in  the  county  of 
Kings,  and  state  of  New-York.  are  held  and  firmly 
bound,  unto  the  people  of  the  state  of  New-York,  in  the 
sum  of  ten  thousand  dollars;  to  be  paid  to  the  said  the 
people  of  the  state  of  New-York,  or  their  assigns.  For 
which  payment  well  and  truly  to  be  made,  we  bind  our- 
selves, and  our  and  each  of  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally,  firmly  by  these  pre- 
sents. 

Sealed  with  our  seals,  and  dated  this  tenth  day  of 
November,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty. 

Whereas,  the  above  named  A.  B.  is  about  to  be  ap- 
pointed by  the  Surrogate  of  the  county  of  Kings  admin- 
istrator of  all  and  singular,  the  goods,  chattels  and 
credits,  which  were  of  G.  H.,  late  of  the  city  of  Brooklyn, 
in  said  county  of  Kings,  deceased. 

Now,  therefore,  the  condition  of  this  obligation  is  such, 
that  if  the  said  A.  B.  shall  faithfully  execute  the  trust 
reposed  in  him  as  such  administrator,  and  shall  obey  all 


EXECUTORS  AND  ADMINISTRATORS. 


143 


the  orders  of  such  Surrogate  touching  the  administration 
of  the  estate  committed  to  him,  then  this  obligation  to 
be  void,  otherwise  to  remain  in  full  force  and  virtue. 


There  must  be  two  or  more  sureties,  to  be  approved  by 
the  Surrogate , and  the  penalty  must  be  not  less  than 
twice  the  value  of  the  personal  estate  of  the  deceased. 


§ 282.  Affidavit  of  justification  to  annex . 

County  of  Kings , ss. : — C.  D.,  in  the  within  bond 
named,  being  duly  sworn,  doth  depose  and  say  that  he 
is  a householder,  (or  freeholder,)  residing  in  the  county 
of  Kings,  and  is  worth  the  sum  of  ten  thousand  dollars,. 
over  and  above  all  his  just  debts,  liabilities  and  responsi- 
bilities. C.  D. 

Sworn  this  tenth  day  of  ) 

Nov.,  1850,  before  me,  \ 


§ 283.  Application  for  Administration  with  the 
Will  annexed. 

County  of  New-York. — Surrogate’s  Court. 

In  the  mater  of  the  Administration,  } 
with  the  will  annexed,  of  the  f 
goods,  chattels  and  credits  of  £ 

James  Thompson,  deceased.  ) 


To  Alexander  W.  Bradford,  Surrogate  of  the  County 
of  New-York: 


Sealed  and  delive 
in  the  presence 


A.  B.  (seal.) 
C.  D.  (seal.) 
E.  F.  (seal.) 


Jesse  C.  Smith, 

Surrogate. 


144 


THE  LAW  OF 


The  petition  of  Cornelia  Thompson,  of  the  city  of 
New-York,  widow,  respectfully  showeth,  that  James 
Thompson,  late  of  the  ciry  of  New-York,  merchant,  de- 
ceased, departed  this  1 fe  in  said  city,  on  the  tenth  day 
of  April,  in  the  year  1848,  leaving  his  last  will  and  tes- 
tament, in  and  by  which  he  appointed  Philip  Thompson 
the  sole  executor  thereof.  That  the  said  last  will  and 
testament  was  duly  proved  before  the  surrogate  of  the 
county  of  New-York  on  the  fifth  day  of  August,  in  the 
«aid  year  1848,  and  recorded  by  him  in  his  office;  and 
probate  thereof  was  on  the  same  day  granted,  and  let- 
ters testamentary  issued  to  the  said  Philip  Thompson,  as 
such  executor  aforesaid.  And  your  petitioner  prays  leave 
to  refer  to  the  said  will  and  probate  and  letters  testament- 
ary, or  to  the  record  thereof,  if  it  shall  be  necessary  for 
her  so  to  do  in  this  matter.  That  the  said  Philip 
Thompson  departed  this  life  on  the  first  day  of  Febru- 
ary instant,  leaving  certain  property  and  assets  of  the 
said  deceased  still  unadministered.  That  your  petitioner 
has,  to  the  best  of  her  ability,  estimated  and  ascertained 
the  amount  of  such  property,  and  that  the  same  does 
not  exceed  in  value  the  sum  of  five  thousand  dol- 
lars. 

Your  petitioner  further  shows,  that  the  said  deceased, 
at  or  immediately  previous  to  his  death,  was  an  inhabit- 
ant of  the  county  of  New-York.  That  your  petitioner 
is  the  sole  residuary  legatee  under  the  said  last  will  and 
testament.  That  she  is  the  widow  of  the  said  deceased, 
and  is  of  full  age.  That  she  is  informed  and  believes 
that  the  surrogate  of  the  county  of  New-York  has  sole 
and  exclusive  power  to  grant  letters  of  administration, 
with  the  will  annexed,  of  the  goods,  chattels  and  credits 
of  the  said  deceased  left  unadministered  by  the  said 
Philip  Thompson.  She  prays  that  such  letters  may  be 
granted  to  her  in  pursuance  of  the  statute  in  such  case 
made  and  provided.  And  your  petitioner  will  ever 
pray,  &c. 

Dated  this  twentieth  day  of  February,  A.  D.  1850. 

Sworn,  &c. — 5 275.  Cornelia  Thompson. 


EXECUTORS  AND  ADMINISTRATORS. 


145 


§ 284.  Letters  of  Administration  with  the  Will 
annexed . 

The  people  of  the  state  of  New- York,  to  Cornelia 
Thompson,  of  the  city  of  New-York,  sole  residuary 
legatee  under  the  last  will  and  testament  of  James^ 
Thompson,  late  of  the  said  city,  merchant,  deceased. 

Whereas  the  said  James  Thompson,  lately  departed 
this  life,  having  previously  duly  made  and  executed  his 
last  will  and  testament : And  whereas  said  will  (a  copy 
whereof  is  hereunto  annexed)  was,  on  the  twenty-fifth 
day  of  August,  in  the  year  one  thousand  eight  hundred 
and  forty-eight,  duly  admitted  to  probate  by  A.  W. 
Bradford,  Esquire,  surrogate  of  the  county  of  New- 
York,  and  probate  and  letters  testamentary  thereof  were 
duly  granted  and  issued  by  the  said  surrogate  to  Philip 
Thompson,  the  sole  executor  named  in  the  said  will : 
And  whereas  the  said  Philip  Thompson  lately  departed* 
this  life,  leaving  property  and  assets  of  the  said  testator 
still  unadministered : And  whereas  the  said  James 

Thompson,  at  or  immediately  previous  to  his  death,  was 
an  inhabitant  of  the  county  of  New-York,  by  the  means 
whereof  the  proving  and  registering  of  said  will,  and 
the  ordering  and  granting  administration  of  all  and  sin- 
gular the  goods,  chattels  and  credits,  whereof  the  said 
testator  died  possessed  in  the  state  of  New-York ; and 
also  the  auditing,  allowing,  and  final  discharging  the 
account  thereof,  doth  appertain  unto  us;  and  we  being 
desirous  that  said  will  should  be  observed  and  per- 
formed, and  that  the  goods*  chattels  and  credits  of  said 
testator  should  be  well  and  faithfully  administered,  ap- 
plied and  disposed  of,  do  grant  unto  you,  the  said  Cor- 
nelia Thompson,  full  power  and  authority,  by  these 
presents,  to  administer  and  faithfully  to  dispose  of,  all 
and  singular  the  said  goods,  chattels  and  credits,  and 
to  ask,  demand,  recover  and  receive,  the  debts  which 
unto  the  said  testator  whilst  living,  and  at  the  time  of 
his  death,  did  belong ; and  to  pay  the  debts  which  the 
13* 


146 


THE  LAW  OF 


said  testator  did  owe,  as  far  as  such  goods,  chattels  and 
credits  will  thereto  extend,  and  the  law  require ; hereby 
requiring  you  to  observe  and  perform  the  said  last  will 
and  testament,  and  to  observe  and  perform  all  the  duties 
to  which  you  would  have  been  subject  if  you  had  been 
named  the  executrix  thereof.  And  we  do,  by  these  pre- 
sents, depute,  constitute  and  appoint  you,  the  said  Cor- 
nelia Thompson,  administratrix,  with  the  will  annexed, 
of  all  and  singular  the  goods,  chattels  and  credits,  which 
were  of  said  James  Thompson,  deceased. 

In  testimony  whereof,  we  have  caused  the 
seal  of  office  of  our  said  surrogate  to  be  here- 
unto affixed.  Witness,  Alexander  W.  Brad- 
ford, surrogate  of  said  county,  at  the  city  of 
New-York,  this  twentieth  day  of  February,  in 
the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  fifty,  and  of  our  independence  the 
seventy-fifth. 

Alexander  W.  Bradford, 

Surrogate . 


;[L.  8.] 


§ 285.  Application  for  Letters  of  Collection. 

County  of  New-York. — Surrogate’s  Court. 

In  the  matter  of  the  goods,  chattels  1 
and  credits  of  Henry  Gray,  de-  > 
ceased.  ) 


To  Alexander  W.  Bradford,  Surrogate  of  the  County 
of  New-York  : 

The  petition  of  George  Day,  of  the  city  of  New- 
York,  respectfully  showeth,  that  your  petitioner  is  sole 
executor  named  in  the  instrument  in  writing,  purporting 
to  be  the  last  will  and  testament  of  Henry  Gray,  late  of 
the  city  of  New-York,  grocer,  deceased,  propounded  for 
probate  and  now  pending  the  court  of  the  surrogate  of 


EXECUTORS  AND  ADMINISTRATORS. 


147 


the  county  of  New-York.  That  the  proof  of  the  said 
will  is  contested,  whereby  a delay  is  necessarily  pro- 
duced in  granting  letters  testamentary  or  of  administra- 
tion in  this  matter,  and  that  it  is  uncertain  when  such 
contest  will  be  terminated.  That  the  property  of  the 
said  deceased  consists  in  part  of  groceries  and  perish- 
able articles,  and  that  it  is  necessary  that  immediate 
steps  should  be  taken  for  the  preservation  or  disposal 
thereof.  That  there  are  notes  and  debts  belonging  to 
the  said  deceased,  falling  due,  the  collection  whereof  re- 
quires early  attention.  That  your  petitioner  has,  to  the 
best  of  his  ability,  estimated  and  ascertained  the  value 
of  the  personal  property  of  which  the  said  deceased 
died  possessed,  and  that  the  same  does  not  exceed  in 
value  the  sum  of  about  five  thousand  dollars. 

Your  petitioner  further  shows,  that  the  said  deceased, 
at  or  immediately  previous  to  his  death,  was  an  inhabit- 
ant of  the  county  of  New-York,  and  that  he  is  informed 
and  believes  that  the  surrogate  of  the  county  of  New- 
York  has  power  in  his  discretion  to  issue  special  letters 
of  administration,  authorizing  the  preservation  and  col- 
lection of  the  goods  of  the  deceased.  He  prays  that 
such  letters  may  be  issued  to  him  pursuant  to  the  sta- 
tute in  such  case  made  and  provided.  And  your  peti- 
tioner will  ever  pray,  &c. 

George  Day. 

Dated  this  sixth  day  of  February,  A.  D.  1850. 

Sworn,  &c. — § 275. 


§ 286.  Collector’s  Bond . 

Know  all  men  by  these  presents,  that  we,  George  Day, 
of  the  city  of  New-York,  physician,  and  William  Martin 
and  Robert  Martin,  of  the  same  city,  merchants,  are  held 
and  firmly  bound  unto  the  people  of  the  state  of  New- 
York,  in  the  sum  of  ten  thousand  dollars,  lawful  money 
of  the  United  States  of  America,  to  be  paid  to  the  said 


148 


THE  LAW  OF 


people,  to  which  payment  well  and  truly  to  be  made,  we 
bind  ourselves,  our  and  each  of  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly,  by  these 
presents.  Sealed  with  our  seals.  Dated  the  seventh 
day  of  February,  in  the  year  one  thousand  eight  hun- 
dred and  fifty. 

Whereas  the  Surrogate  of  the  county  of  New-York  is 
about  to  issue  special  letters  of  administration  to  the 
above  bounden  George  Day,  authorising  the  preserva- 
tion and  collection  of  the  goods  of  Henry  Gray,  late  of 
the  city  of  New-York,  deceased,  and  appointing  him  col- 
lector of  the  said  goods  : Now  the  condition  of  this  obli- 
gation is  such,  that  if  the  said  George  Day  shall  make  a 
true  and  perfect  inventory  of  such  of  the  assets  of  the 
said  deceased,  as  shall  come  to  his  possession  or  know- 
ledge, and  return  the  same  within  three  months  to  the 
office  of  the  said  Surrogate ; and  shall  faithfully  and 
truly  account  for  all  property,  money  and  things  in  ac- 
tion, received  by  him  as  such  collector,  whenever  requir- 
ed by  the  said  Surrogate,  or  any  other  court  of  competent 
authority,  and  faithfully  deliver  up  the  same  to  the  per- 
son or  persons  who  shall  be  appointed  executors  or  ad- 
ministrators of  the  said  deceased,  or  to  such  other  per- 
son as  shall  be  authorised  to  receive  the  same  by  the 
said  Surrogate,  then  this  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in 
the  presence  of 
George  Green. 

Affidavit  of  Justification,  as  in  5 282. 


) George  Day, 

'seal.' 

\ William  Martin, 

SEAL.' 

Robert  Martin. 

SEAL. 

§ 287.  Letters  of  Collection. 

The  people  of  the  state  of  New  York,  to  George  Day, 
sole  executor  named  in  the  instrument  in  writing,  pur- 
porting to  be  the  last  will  and  testament  of  Henry  Gray, 
late  of  the  city  of  New-York,  deceased,  propounded  for 


EXECUTORS  AND  ADMINISTRATORS. 


149 


proof,  and  now  pending  before  the  Surrogate  of  the 
county  of  New-York. 

Whereas  the  proof  of  the  said  will  is  contested,  and  a 
delay  is  necessarily  produced  in  granting  letters  testa- 
mentary of  a will,  or  letters  of  administration  of  the 
goods,  chattels  and  credits  of  the  said  Henry  Gray,  de- 
ceased, and  it  appearing  that  the  situation  of  the  proper- 
ty of  the  said  deceased  requires  that  special  letters  of 
administration,  authorizing  the  preservation  and  collec- 
tion of  the  goods  of  the  deceased  should  be  issued:  And 
we  being  desirous  that  the  goods,  chattels,  personal  es- 
tate and  debts  of  said  deceased  may  be  collected  and  pre- 
served, do  grant  unto  you,  the  said  George  Day,  full 
power,  by  these  presents,  to  collect,  recover  and  receive 
the  said  goods,  chattels,  personal  estate  and  debts  of  the 
said  deceased ; and  to  secure  the  same  at  such  reason- 
able expense  as  the  Surrogate  of  the  county  of  New- 
York  shall  allow  ; and  to  sell  such  of  the  said  goods  as 
are  perishable,  under  the  direction  of  the  said  Surrogate, 
after  the  same  shall  have  been  appraised;  hereby  requir- 
ing you  to  make  or  cause  to  be  made,  a true  and  perfect 
inventory  of  such  of  the  assets  of  said  deceased  as  shall 
come  to  your  possession  or  knowledge,  and  return  the 
same  to  our  said  Surrogate,  within  t'jree  months  from 
the  date  of  these  presents ; and  also  faithfully  and  truly 
account  for  all  property,  money  and  things  in  action,  re- 
ceived by  you  as  such  collector,  whenever  required  by 
our  said  Surrogate,  or  any  other  court  of  competent 
authority ; and  faithfully  to  deliver  up  the  same  to  the 
person  or  persons  who  shall  be  appointed  executors  or 
administrators  of  the  said  Henry  Gray,  deceased,  or  to 
such  other  person  as  shall  be  authorised  to  receive  the 
same  by  said  Surrogate.  And  we  do  by  these  presents 
depute,  constitute  and  appoint  you,  the  said  George  Day, 
collector  of  all  and  singular  the  goods,  chattels  and  cre- 
dits which  were  of  the  said  Henry  Gray,  deceased. 

In  testimony  whereof,  we  have  caused  the 
seal  of  office  of  our  said  Surrogate  to  be  here- 


150 


THE  LAW  OF 


unto  affixed.  Witness,  A.  W.  Bradford,  Sur- 
[seal.]  rogate  of  said  county,  at  the  city  of  New- York* 
this  tenth  day  of  February,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  and 
of  our  independence  the  seventy-fifth. 

A.  W.  Bradford, 

Surrogate . 


2S8.  Order  for  Appointment  of  Appraisers. 


In  the  matter  of  the  Estate  of  ) 

James  Thompson,  deceased,  j 

On  the  application  of  Philip  Thompson,  the  executor 
of  the  last  will  and  testament  of  James  Thompson,  late 
of  the  city  of  New-York,  deceased,  to  have  two  disinte- 
rested appraisers  appointed  to  estimate  and  appraise  the 
personal  property  of  the  said  deceased,  it  is  ordered  that 
William  Green  and  Henry  Richards,  both  of  the  city  of 
New-York,  be,  and  they  are  hereby  appointed  such  ap- 
praisers. 


§ 289.  No  tice  of  Appraisemen  t 

Notice  is  hereby  given,  that  the  executor  of  the  last 
will  and  testament  of  James  Thompson,  late  of  the  city 
of  New-York,  deceased,  with  the  aid  of  appraisers,  for 
that  purpose  duly  appointed  by  the  Surrogate  of  the 
county  of  New-York,  will,  on  the  eighteenth  day  of  Au- 
gust instant,  at  nine  o’clock  in  the  forenoon  of  that  day, 
at  number  Broadway,  in  the  city  of  New-York,  in 
said  county,  proceed  to  make  an  appraisement  and  inven- 
tory of  all  the  goods,  chattels  and  credits  of  the  said  de- 
ceased. 

Dated  this  twelfth  day  of  August,  A.  D.  1850. 

Philip  Thompson, 

Executor. 


EXECUTORS  AND  ADMINISTRATORS. 


151 


§ 290.  Form  of  Inventory, 


Oaths  of  Appraisers. 

County  of  New - York , ss. — I,  William  Green,  of  the 
city  of  New  York,  appraiser,  duly  appointed  by  the  Sur- 
rogate of  the  county  of  New- York,  do  swear  and  declare, 
that  I will  truly,  honestly  and  impartially  appraise  the 
personal  property  of  James  Thompson,  late  of  the  coun- 
ty aforesaid,  deceased,  which  shall  be  for  that  purpose 
exhibited  to  me,  to  the  best  of  my  knowledge  and  abi- 
lity. 

William  Green. 


Sworn  this  fifteenth  day  of  £ 

August,  1850,  before  me,  $ 

Joseph  Strong, 
Commissioner  of  Deeds . 


Here  follows  the  same  oath  of  the  other  appraiser. 


5 291.  A true  and  'perfect  Inventory  of  all  the  goods, 
chattels  and  credits  which  were  of  James  Thompson,  late 
of  this  city  of  New-York,  deceased,  made  by  the  execu- 
tor of  the  last  will  and  testament  of  the  said  deceased, 
with  the  aid  and  in  the  presence  of  William  Green  and 
Henry  Richards,  both  of  the  city  of  New-York,  they 
having  been  duly  appointed  and  sworn  as  appraisers : 
containing  a full,  just  and  true  statement  of  all  the  per- 
sonal property  of  the  said  deceased,  which  has  come  to 
the  knowledge  of  the  said  executor,  and  particularly  of 
all  monies,  bank  bills,  and  other  circulating  medium,  be- 
longing to  the  said  deceased,  and  of  all  justclaims  of  the 
said  deceased  against  said  executor,  and  of  all  bonds, 
mortgages,  notes  and  other  securities,  for  the  payment 
of  money  belonging  to  the  said  deceased ; specifying  the 
names  of  the  debtor  in  each  security,  the  date,  the 
sum  originally  payable,  the  endorsements  thereon,  with 
their  dates,  and  the  sum  which,  in  the  judgment  of  the 
appraisers,  may  be  collectible  on  such  security. 


152 


THE  LAW  OF 


Upon  the  completion  of  this  inventory,  duplicates 
thereof  have  been  made,  and  signed  at  the  end  thereof  by 
the  appraisers. 

Articles  Inventoried. 

Bond  made  by  Jonathan  Little  to  the  testa- 
tor, dated  the  first  day  of  October,  in  the 
year  1839,  conditioned  for  the  payment  of 
the  sum  of  nine  thousand  dollars,  on  the 
first  day  of  October,  in  the  year  1840,  with 
interest  at  the  rate  of  seven  per  cent,  per 
annum,  payable  half-yearly  : Secured  by 
a mortgage  of  real  estate  in  the  city  of 
New  York,  made  by  the  said  Jonathan* 

Little  and  his  wife,  bearing  even  date  with 
the  bond  ....  $9,000  00 

The  payment  of  interest  is  endorsed  on  this 
bond  up  to  the  first  day  of  April,  1844. 

Interest  now  due  on  this  bond  $ 

Promissory  note,  made  by  Thomas  Shaw  to 
the  testator,  or  order,  dated  the  first  day 
of  February,  1849,  for  three  thousand 
dollars,  payable  on  demand  with  interest  3,000  00 
Interest  now  due  on  this  note  $ 

The  following  accounts  are  due  to  the  tes- 
tator : 

Account  against  John  Green,  20th  March, 

1846  ....  125  00 

Account  against  Henry  Jones,  15th  April, 

1845  ....  280  00 

Twenty-five  shares  of  the  capital  stock  of 
the  Greenwich  Insurance  Company,  in  the 
city  of  New-York;  certificate  number, 

198;  par  value,  twenty-five  dollars  each 
share ; present  actual  value,  one  hundred 
and  five  per  cent.  . . 656  25 


Carried  forward, 


EXECUTORS  AND  ADMINISTRATORS. 


153 


Brought  forward, 

Due  to  the  testator,  from  Philip  Thompson, 
the  said  executor,  for  money  borrowed 
without  interest,  two  thousand  dollars  2,000 

The  interest  of  the  testator  in  the  stock  in 
trade,  effects  and  credits  of  the  late  firm 
of  “ Thompson  & Jones,”  hardware  mer- 
chants, in  the  city  of  New-York,  compos- 
ed of  the  said  testator  and  Jacob  Jones, 
and  in  which  the  said  testator  owned  the 
one  half  share,  and  interest. 

The  accounts  and  affairs  of  the  said  part- 
nership not  having  been  adjusted  and 
closed,  the  appraisers  are  not  able  to  state 
the  exact  value  of  this  interest.  From 
the  information  they  have  obtained,  the 
value  of  the  said  interest  is,  in  their  judg- 
ment, not  less  than  ten  thousand  dollars  10,000 

Money — In  specie,  at  the  residence  of  the 

testator,  at  the  time  of  his  death  220 
Deposited  in  the  Bank  of  America  1,575 

The  following  stocks,  securities  and  ac- 
counts, the  appraisers  consider  of  no  va- 
lue : 

Thirty-two  shares  of  the  capital  stock  of  the 
“President,  Managers  and  Company  for 
erecting  a Bridge  over  the  River  Dela- 
ware, near  the  Town  of  Milford,”  of  which 
the  par  value  was  $50  per  share. 

Bond  made  by  James  Hazen  to  the  testator, 
dated  the  21st  June,  1835,  conditioned  for 
the  payment  of  $600,  one  year  after  the 
date,  with  interest. 

Promissory  note,  made  by  Simon  Ward,  to 
the  order  of  John  King,  and  by  him  en- 
dorsed to  the  testator,  dated  2d  October, 

1846,  for  $400,  payable  six  months  after 
date,  duly  protested. 


00 

00 

00 

00 


14 


154 


THE  LAW  OF 


Account  against  George  Brown,  $78 
“ “ Thomas  Jackson,  95 

Household  Furniture — At  No.  Breadway,  New - York. 
First  Floor — Front  Parlor. 


About  sixty  yards  of  Brussels  carpet  50  00 

Set  of  window  curtains  and  ornaments  150  00 

Pair  of  window  shades,  $6 ; mahogany  sofa, 

$25  ....  31  00 

Two  mahogany  couches,  $40 ; rocking 

chair,  $7  ...  47  00 

Six  mahogany  chairs,  $18;  two  mahogany 

tabouretts,  $8  . . 26  00 

Large  mirror,  $80 ; one  pair  of  candela- 

bras,  $40  ...  120  00 

Mahogany  stand,  $3  ; astral  lamp,  $9  12  00 


Back  Parlor , similar  list , and  so  with  the  other  rcoms  of 
the  house. 

The  following  articles  are  exempted  from  appraise- 
ment to  remain  in  the  possession  of  Cornelia  Thompson, 
the  widow  of  the  testator,  pursuant  to  the  statute. 

One  mahogany  table,  six  mahogany  chairs,  one  maho- 
gany French  bedstead,  and  two  other  mahogany  bed- 
steads, with  their  beds  and  necessary  bedding.  Six  ivory 
handled  knives,  six  silver  forks,  six  China  plates,  six  China 
tea  cups  and  six  China  saucers,  one  silver  sugar  dish,  one 
silver  milk  pot,  one  silver  teapot  and  six  silver  table 
spoons.  The  family  Bible,  five  family  pictures,  all  school 
books,  and  sixty-eight  books,  the  same  not  exceeding  in 
value  fifty  dollars,  and  which  were  kept  and  used  as  part 
of  the  family  library  before  the  decease  of  the  testator. 
Three  stoves  kept  for  use  by  the  family.  The  following 
necessary  cooking  utensils  (describe  them).  The  neces- 
sary wearing  apparel  and  clothing  of  the  family.  The 
clothing  of  the  widow  and  her  ornaments. 


EXECUTORS  AND  ADMINISTRATORS. 


155 


In  addition  to  the  above  enumerated  articles  exempt 
from  appraisal,  the  appraisers,  in  the  exercise  of  their 
discretion,  pursuant  to  the  statute,  set  apart  the  follow- 
ing articles  of  necessary  household  furniture  and  other 
personal  property  for  the  use  of  the  widow  and  minor 
children  of  the  testator,  the  same  not  exceeding  in  value 
one  hundred  and  fifty  dollars. 

(Describe  the  articles.) 

Dated  this  day  of  A.  D.  1850. 

William  Green,  ) A 
Henry  Richards,  \ ppraisers. 


§ 292.  Oath  to  Inventory. 

Slate  of  New - York , ) 

County  of  New-York.  $ ss* 

Philip  Thompson,  of  the  city  of  New-York,  being  duly 
sworn,  doth  depose  and  say,  that  he  is  the  executor  of 
the  last  will  and  testament  of  James  Thompson,  late  of 
the  city  of  New-York,  deceased,  and  that  the  foregoing 
is  an  inventory  of  the  personal  property  of  the  said  de- 
ceased. That  the  said  inventory  is  in  all  respects  just 
and  true  ; that  it  contains  a true  statement  of  all  the  per- 
sonal property  of  the  said  deceased  which  has  come  to 
the  knowledge  of  this  deponent ; and  particularly  of  all 
money,  bank  bills,  and  other  circulating  medium,  belong- 
ing to  the  said  deceased,  and  of  all  just  claims  of  the  said 
deceased  against  this  deponent,  according  to  the  best  of 
this  deponent’s  knowledge. 

Philip  Thompson. 

Sworn  this  2d  day  of  ) 

Sept.,  1850,  before  $ 

Joseph  Strong, 

Commissioner  of  Deeds . 


156 


THE  LAW  OF 


§ 293.  Application  to  compel  the  return  of  an 
inventory. 

To  Mark  H.  Sibley,  Esq.,  County  Judge  of  Ontario 
County,  performing  the  duties  of  the  office  of  Surro- 
gate therein. 

The  petition  of  David  Jones,  of  the  city  of  Albany, 
respectfully  showeth,  that  he  is  a creditor  of  Henry 
Tucker,  late  of  Geneva,  in  the  county  of  Ontario,  de- 
ceased, intestate;  and  that  there  is  justly  due  to  him, 
from  the  estate  of  the  said  deceased,  on  a promissory 
note  made  by  said  Tucker  in  his  lifetime  to  the  peti- 
tioner, the  sum  of  five  hundred  dollars,  with  interest 
from  the  8th  day  of  October,  1848.  That  letters  of  ad- 
ministration upon  the  estate  of  said  Tucker,  were,  on  the 
20th  day  of  March  last  past,  granted,  by  the  County 
Judge  of  Ontario  County,  performing  the  duties  of  the 
office  of  Surrogate  therein,  to  George  Tucker,  of  Geneva 
aforesaid,  grocer,  the  brother  of  said  intestate ; but  that 
said  administrator  has  as  yet  neglected  to  return  an  in- 
ventory of  the  estate  of  the  said  intestate,  and  has  not 
obtained  further  time  so  to  do.  Your  petitioner,  there- 
fore, prays  for  a summons,  requiring  the  said  adminis- 
trator at  a short  day,  to  be  therein  inserted,  to  appear 
before  said  County  Judge,  and  return  an  inventory  of 
the  personal  property  of  the  said  intestate,  according  to 
law,  or  show  cause  why  an  attachment  should  not  issue 
against  him,  and  for  such  further  or  other  relief  as  may 
be  proper. 

Dated,  &c.  David  Jones. 

Annex  an  affidavit  of  verification,  as  in  \ 275. 

§ 294.  Application  of  a judgment  creditor  that 
execution  issue. 

County  of  Albany,  ) 

Surrogate’s  Court.  \ 

To  the  Surrogate  of  the  County  of  Albany. 

The  petition  of  A.  B.,  of  the  city  of  Albany,  respect- 


EXECUTORS  AND  ADMINISTRATORS. 


157 


fully  showeth,  that  on  the  1st  day  of  May,  1850,  your 
petitioner  obtained  a judgment  in  the  Supreme  Court  of 
the  State  of  New-York,  after  a trial  at  law  upon  the 
merits,  against  C.  D.,  the  executor  of  the  last  will  and 
testament  of  E.  F.,  deceased,  for  500  dollars  damages 
and  costs,  as  will  fully  appear  on  reference  to  the  record 
of  the  said  judgment  now  on  file  in  the  office  of  the 
clerk  of  said  court,  in  the  city  of  Albany;  and  that  the 
said  judgment  still  remains  in  full  force  unpaid  and  un- 
satisfied. Your  petitioner  now,  therefore,  applies  for  an 
order  that  the  said  C.  D.  may  show  cause,  if  any  he  have, 
why  an  execution  should  not  issue  upon  the  said  judg- 
ment; and  that  the  said  C.  D.,  as  such  executor  as 
aforesaid,  may  be  eited  to  appear  and  account  before 
the  said  Surrogate,  and  for  such  other  and  further  relief 
in  the  premises  as  may  be  proper. 

Dated,  &c.  A.  B, 

Affidavit  of  verification,  as  in  § 275. 


§ 295.  Application  for  further  time  to  file  an 
inventory . 

County  of  New-York,  ) 

Surrogate’s  Court.  $ 

To  A.  Bradford,  Esq , Surrogate  of  the  County  of 

New-York. 

The  petition  of  A.  B.,  of  the  city  of  New-York,  execu- 
tor of  the  last  will  and  testament  of  C.  D.,  late  of  said 
city,  deceased,  respectfully  showeth,  that  letters  testa- 
mentary were  duly  granted  to  your  petitioner  on  the 
estate  of  the  said  testator,  on  or  about  the  1st  day  of 
May  last  past.  That  the  personal  property  of  the  said 
C.  D.  consists,  for  the  most  part,  of  the  undivided  dis- 
tributive share  to  which  he  was  entitled,  in  and  to  the 
personal  estate  of  his  brother,  E.  D.,  lately  deceased, 


158 


THE  LAW  OF 


intestate.  That  an  administrator  of  the  estate  of  the 
said  E.  D.,  has  been  appointed  by  the  Surrogate  of  the 
County  of  Kings,  but  that  the  period  for  the  settlement 
of  the  estate  ot  the  said  E.  D.  has  not  yet  arrived,  and 
that  the  amount  of  the  share  thereof  to  which  the  estate 
of  the  said  C.  D.  may  be  entitled  cannot  yet  be  ascer- 
tained, and  that  your  petitioner  cannot,  therefore,  ex- 
hibit a perfect  inventory  of  the  personal  property  of  the 
said  C.  D.  within  the  three  months  limited  by  law ; he 
therefore  prays  that  he  may  be  allowed  four  months 
further  time  to  return  such  inventory. 

Dated,  &c.  A.  B. 

Affidavit  of  verification  to  be  added — § 275. 


§ 296.  Notice  to  creditors  to  present  claims . 

Notice  is  hereby  given  to  all  persons  having  claims 
against  the  estate  of  James  Jackson,  late  of  the  city  of 
New-York,  merchant,  deceased,  that  they  are  required  to 
exhibit  the  same,  with  the  vouchers  thereof,  to  the  sub- 
scriber, the  executor  of  the  last  will  and  testament  of 
said  deceased,  at  his  place  of  business,  No.  142  Broad- 
way, in  the  city  of  New-York,  on  or  before  the  first  day 
of  May  next. 

Dated  November  1st,  1850. 

William  Jackson,  Executor . 


§297.  Affidavit  of  creditor  annexed  to  his  clain\, 

City  and  County  of  New-  York , ss. : — David  Bruce,  of 
said  city  being  duly  sworn,  says,  that  the  foregoing 
claim  against  the  estate  of  James  Jackson,  deceased,  is 
justly  due  and  owing  to  this  deponent ; that  no  payments 


EXECUTORS  AND  ADMINISTRATORS. 


159 


have  been  made  thereon,  and  that  there  are  no  offsets 
against  the  same,  to  the  knowledge  or  belief  of  this  de- 
ponent. David  Bruce. 

Sworn  this  1st  day  of  ) 

Nov.,  1850,  before  \ 

Joseph  Strong, 

Corner  of  Deeds . 


§ 298.  Agreement  to  refer  claim. 

Whereas,  David  Bruce  has  presented  a claim  to  Wil- 
liam Jackson,  executor  of  the  last  will  and  testament  of 
James  Jackson,  late  of  the  city  of  New-Yoik,  deceased, 
upon  a promissory  note  made  by  said  testator,  on  the 
14th  day  of  October,  1847,  for  the  payment  of  five  hun- 
dred dollars,  in  six  months  from  date,  claiming  to  be 
paid  the  full  amount  thereof,  with  interest,  the  justice  of 
which  claim  is  doubted  by  the  said  executor.  It  is  now 
agreed,  by  and  betw  een  said  Bruce  and  the  said  execu- 
tor, to  refer  the  said  controversy  to  George  W.  Strong, 
Esq.,  counsellor  at  law,  to  hear  and  determine  the  same 
pursuant  to  the  statute  in  such  case  made  and  provided. 

Dated,  &c.  Davtd  Bruce, 

William  Jackson. 


Approval  of  the  Surrogate  to  be  endorsed . 

The  Surrogate  of  the  county  of  New-York  hereby 
approves  of  the  person  named  as  referee  in  the  within, 
agreement. 

A.  W.  Bradford, 

Dated,  &c.  Surrogate . 


160 


THE  LAW  OF 


§ 299.  Application  for  proof  of  a debt  due  from  the 
deceased  to  the  Administrator. 

County  of  Albany,  ) 

Surrogate’s  Court.  £ 

To  the  Surrogate  of  the  County  of  Albany: 

The  petition  of  A.  B.,  of  the  city  of  Albany,  re- 
spectfully showeth,  that  he  is  administrator  of  the 
goods  and  chattels  of  C.  D.,  late  of  said  city,  deceased, 
who  died  indebted  to  your  petitioner  in  the  sum  of  five 
hundred  dollars,  with  interest,  due  upon  a promissory 
note  made  by  him  in  his  lifetime  to  your  petitioner,  on 
the  1st  day  of  May,  1848,  payable  six  months  after  the 
date  thereof.  That  the  said  sum  remains  justly  due  and 
owing  to  your  petitioner  thereupon — that  no  payments 
have  been  made  thereon,  and  there  are  no  offsets  against 
the  same,  to  the  knowledge  of  your  petitioner.  That 
your  petitioner  has  advertised  for  claims  against  said 
estate  pursuant  to  statute,  and  that  none  have  been  ex- 
hibited, nor  does  your  petitioner  believe  that  any  others 
exist;  and  that  E.  F.  and  G.  H.,  both  of  the  city  of 
Hudson,  in  the  county  of  Columbia,  brothers  of  the  said 
C.  D , are  the  only  persons  entitled  to  share  in  the  dis- 
tribution of  the  personal  property  of  said  intestate.  In 
order  therefore  that  your  petitioner  may  retain  a part  of 
the  property  of  the  said  intestate  in  satisfaction  of  the 
said  claim,  he  prays  that  the  proper  persons  may  be 
•cited,  to  appear  before  the  Surrogate  and  attend  the 
proving  of  the  said  claim  against  the  estate  of  the  said 
intestate. 

Dated,  &c.  A.  B. 


Add  an  affidavit  of  verification,  \ 275. 


EXECUTORS  AND  ADMINISTRATORS. 


161 


§ 300.  Application  of  a Creditor  for  payment  of 
his  Debt. 

County  of  New-York,  > 

Surrogate’s  Court.  $ 

To  A.  W.  Bradford,  Surrogate  of  New-York: 

The  petition  of  A.  B.,  of  the  city  of  New-York, 
merchant,  respectfully  shows,  that  he  is  a creditor  of 
C.  D.,  late  of  said  city,  deceased,  and  has  a valid  claim 
against  the  estate  of  the  said  deceased,  on  a promissory 
note  made  by  the  said  C.  D.  in  his  lifeiime,  to  the  order 
of  your  petitioner,  dated  the  1st  day  of  May,  1849,  for 
six  hundred  dollars,  payable  six  months  after  date.  That 
said  claim  is  justly  due  and  owing  to  your  petitioner — - 
that  no  payments  have  been  made  thereon,  and  that 
there  are  no  offsets  against  the  same,  to  the  knowledge 
of  your  petitioner.  That  letters  testamentary  of  the 
last  will  and  testament  of  the  said  C.  D.  were  granted 
by  the  Surrogate  of  New-York  to  E.  F.,  sole  executor 
of  the  said  will,  on  the  first  day  of  October,  1849.. 
That  your  petitioner  duly  exhibited  the  said  claim  to 
the  said  executor  under  the  notice  published  by  him  for 
the  exhibition  of  claims,  and  that  he  assented  to  the 
correctness  of  the  same.  That  your  petitioner  has  de- 
manded payment  of  the  said  claim  from  the  said  execu- 
tor, since  the  expiration  of  one  year  from  the  time  of 
the  granting  of  said  letters  testamentary,  and  that  he 
has  neglected  to  pay  ihe  same,  although,  as  your  peti- 
tioner is  informed  and  believes,  sufficient  assets  for  the 
payment  of  all  claims  against  the  said  estate  have  come 
to  the  hands  of  the  said  executor. 

Your  petitioner  therefore  prays  that  the  said  executor 
may  be  directed  to  pay  the  said  claim  of  your  petitioner, 
and  for  such  other  relief  as  may  be  proper. 

Dated,  &c.  A.  B. 

Add  affidavit  of  verification,  § 275. 


162 


THE  LAW  OF 


301. 


Bond  to  refund  a Legacy. 


Know  all  men  by  these  presents  that  we,  A.  B.,  and 
C.  D.  and  E.  F.,  all  of  the  city  of  New-York,  are  held 
and  firmly  bound  to  G.  H , executor  of  the  last  will 
and  testament  of  L.  H.,  late  of  said  city,  deceased,  in 
the  sum  of  one  thousand  dollars,  to  be  paid  to  the  said 
G.  H.  as  such  executor  as  aforesaid,  his  successor  or 
assigns ; for  which  payment  well  and  truly  to  be  made, 
we  bind  ourselves,  one  and  each  of  our  heirs,  executors, 
administrators  and  assigns,  jointly  and  severally,  firmly 
by  these  presents.  Sealed  with  our  seals.  Dated  the 
1st  day  of  November,  1850.  Whereas  the  said  L.  H. 
by  his  said  will  gave  to  the  said  A.  B.  the  sum  of  five 
hundred  dollars,  to  be  paid  to  him  within  three  months 
after  his  decease,  and  the  said  executor  has  consented 
to  pay  the  same  upon  the  execution  of  this  bond.  Now 
the  condition  of  this  obligation  is  such  that  if  any  debts 
against  the  said  deceased  shall  appear,  and  which  there 
shall  be  no  other  assets  to  pay,  and  there  shall  be  no 
other  assets  to  pay  other  legacies,  or  not  sufficient ; and 
the  said  A.  B.  shall  refund  the  legacy  so  paid,  or  such 
rateable  proportion  thereof,  with  the  other  legatees,  as 
may  be  necessary  for  the  payment  of  the  said  debts, 
and  the  proportional  parts  of  such  other  legacies,  and 
costs  and  charges  incurred  by  reason  of  the  said  pay- 
ment to  him ; or  if  the  probate  of  the  said  will  shall  be 
revoked,  or  the  will  declared  void,  and  the  said  A.  B. 
shall  refund  the  whole  of  the  said  legacy,  with  interest, 
to  the  executor  or  administrator  entitled  thereto,  then 
this  obligation  to  be  void ; otherwise  to  remain  in  full 
force  and  virtue. 


‘Sealed  and  delivered,  > 
in  the  presence  of  $ 


A.  B. 
C.  D. 
E.  F. 


'seal.] 

SEAL.] 

SEAL.] 


EXECUTORS  AND  ADMINISTRATORS. 


163 


§ 302.  Application  by  legatee , that  the  executor 
render  an  account . 

County  of  New-York,  > 

Surrogate’s  Court.  $ 

To  A.  W.  Bradford,  Surrogate  of  New-York. 

The  petition  of  A.  B.,  of  the  city  of  New-York,  mer- 
chant, respectfully  shows  that  he  is  me  of  ihe  residuary 
legatees  of  the  last  will  and  testament  of  C.  D.,  late  of 
said  city,  deceased,  which  will  was  duly  proved  before 
the  Surrogate  of  the  county  of  NewT-York,  and  recorded 
in  his  office  on  the  10th  day  of  June,  1847,  and  letters 
testamentary  were  on  the  same  day  granted  to  E.  D., 
the  executor  named  in  the  said  will,  and  that  more  than 
eighteen  months  have  since  elapsed.  That  in  and  by 
the  said  will,  the  said  C.  D.,  after  giving  certain 
specific  as  well  as  general  legacies  to  person, s therein 
named,  gave  and  bequeathed  all  the  rest,  residue  and  re- 
mainder of  his  personal  property  to  your  petitioner  and 
to  his  two  brothers — E.  B.,  the  said  executor,  and  F.  B., 
to  be  equally  divided  between  them,  share  and  share 
alike,  as  on  reference  to  said  will  or  the  record  thereof 
will  more  fully  appear.  That  the  the  said  C.  D.  left  a 
large  personal  property,  amount  to  ten  thousand  five 
hundred  dollars,  as  appears  by  tl  e inventory  thereof, 
filed  in  said  Surrogate’s  office,  and  that  there  is  or  should 
be  a large  amount  thereof  remaining  in  the  hands  of  said 
executor  after  the  payment  of  all  the  testator’s  debts, 
and  of  all  the  legacies  bequeathed  by  the  said  will.  That 
since  the  expiration  of  eighteen  months  from  the  time  of 
granting  said  letters  testamentary,  your  petitioner  has 
frequently  applied  to  the  said  executor  for  an  account  of 
his  proceedings  in  the  discharge  of  his  said  trust,  and  for 
the  payment  of  the  share  or  portion  of  the  personal  pro- 
perty of  the  said  testator  due  to  your  petitioner,  under 
such  bequest  to  him,  but  that  the  said  executor  has  here- 
tofore refused  to  render  such  account  or  to  make  such 
payment.  Your  petitioner  therefore  prays  that  the  said 


164 


THE  LAW  OF 


executor  may  be  directed  to  appear  in  this  court,  and 
render  an  account  of  his  proceeding  as  such  executor  as 
aforesa’d,  and  that  such  other  proceedings  may  be  had 
as  may  be  requisite  to  enforce  payment  of  your  petition- 
er’s said  claim. 

Dated,  &c.  A.  B. 

Add  an  affidavit  of  verification,  $ 275. 


§ 303.  Application  by  an  executor  for  a final 
settlement  of  his  account . 

To  Jesse  C.  Smith,  Surrogate  of  the  County  of  Kings. 

The  petition  of  A.  B.,  of  the  city  of  Brooklyn,  respect- 
fully showeth  that  he  was  duly  qualified  as  executor  of 
the  last  will  and  testament  of  E.  B.,  deceased,  before  the 
Surrogate  of  the  county  of  Kings,  on  the  10th  day  Sep- 
tember, 1847,  and  that  more  than  eighteen  months  have 
elapsed  since  the  granting  of  letters  testamentary  to  him. 
That  the  said  E.  B.,  in  and  by  his  said  last  will  and  tes- 
tament, disposed  of  his  personal  property  as  follows : 
(here  set  forth  so  much  of  the  will  as  relates  to  the  dis- 
position of  the  personal  property),  as  on  reference  to  said 
will,  or  the  record  thereof,  will  more  fully  appear.  That 
immediately  after  his  appointment  he  entered  upon  the 
discharge  of  the  duties  of  his  office  and  has  diligently 
proceeded  with  the  same,  and  is  now  desirous  of  render- 
ing an  account  of  his  proceedings  as  such  executor,  in 
order  that  the  same  may  be  finally  settled.  He  there- 
fore prays  that  a citation  may  be  issued  pursuant  to  sta- 
tute, requiring  the  creditors,  legatees  and  next  of  kin  to 
the  deceased  to  appear  and  attend  the  settlement  of  his 
said  accounts. 

Dated,  &c.  A.  B. 

Add  affidavit  of  verification,  { 275. 


§ 304.  Form  of  an  administrator's  account. 

The  Estate  of  A.  B.,  deceased,  in  account  with  C.  D.,  Administrator. 


executors  and  administrators, 


165 


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166 


THE  LAW  OF 


§ 305.  Oath  to  be  annexed  to  the  administrator' s 
account . 

County  of  Kings,  ss.: — A.  B .,  of  the  city  of  Brooklyn, 
being  sworn,  says  that  he  is  administrator  of  all  and  sin- 
gular the  goods  and  chattels  of  C.  D.,  late  of  said  city, 
deceased,  and  that  the  annexed  account  is  in  all  respects 
just  and  true.  That,  according  to  the  best  of  his  know- 
ledge, information  and  belief,  it  contains  a full  and  true 
account  of  all  his  receipts  and  disbursements  on  account 
of  the  estate  of  the  said  deceased,  and  of  a'l  sums  of 
money  and  property  belonging  to  said  estate,  which  have 
come  to  his  hands  as  such  administrator,  or  which  have 
been  received  by  any  other  person  by  his  order  or  autho- 
rity, for  his  use,  and  that  he  doth  not  know  of  any  error 
or  omission  therein,  to  the  prejudice  of  any  person  inte- 
rested in  the  estate  of  the  said  deceased.  And  he  fur- 
ther says  that  the  sums  under  twenty  dollars  charg- 
ed in  the  said  account,  for  which  no  vouchers  or  other 
evidences  of  payment  are  hereto  annexed,  or  for  which  he 
may  not  be  able  to  produce  vouchers  or  other  evidences 
of  payment,  have  actually  been  paid  and  disbursed  by 
him  as  charged  in  said  account. 

A.  B. 

Sworn  this  1st  day  of  > 

Nov.,  1850,  before  me,  C 

J.  C.  S. 


§ 306.  An  account  of  his  'proceedings  rendered  by 
an  executor  on  a final  account. 

In  the  matter  or  the  final  ac- 

counting  of  A.  B.,  execu-  > account  of  proceedings, 
tor  of  C.  D.,  deceased.  ) 

To  the  Surrogate  of  the  County  of  New-York. 

I,  the  said  A.  B.,  do  hereby  render  the  following  ac- 
count of  my  proceedings  in  this  matter,  for  final  settle- 


EXECUTORS  AND  ADMINISTRATORS. 


167 


ment  and  allowance.  On  the  1st  day  of  May,  1847, 1 
caused  an  inventory  of  the  personal  estate  of  the  deceased 
to  be  filed  in  this  office,  and  on  the  1st  day  of  June,  1847, 
in  pursuance  of  an  order  of  this  court,  I caused  a notice 
for  claimants  to  present  their  claims  against  said  estate, 
to  be  published  for  six  months  The  proof  of  publication 
is  hereto  annexed.  Within  said  six  months  the  claims 
of  creditors,  as  stated  in  schedule  D.,  hereto  annexed, 
was  presented  to  and  allowed  by  me.  On  the  same  sche- 
dule there  is  also  a statement  of  the  claims  disputed  by 
me,  and  for  which  claimants  have  recovered  judgment 
against  me.  The  amount  of  said  inventory  as  appraised, 
is  five  thousand  five  hundred  dollars,  all  of  which  was  sold 
at  public  auction,  for  the  prices  and  in  the  manner  stated 
in  schedule  A.,  hereto  also  annexed,  except  the  articles 
contained  in  said  schedule,  which  are  therein  stated  to 
have  been  sold  at  private  sale.  That  both  said  public 
and  private  sales  were  fairly  made,  at  the  best  prices  that 
could  then  be  obtained,  as  I then  verily  believed.  That 
said  schedule  A.  contains  also  a true  statement  of  the 
debts  due  the  estate  mentioned  in  said  inventory,  which 
have  been  collected,  together  with  the  interest  on  all 
sums  of  money  received  by  me,  for  which  I am  legally 
accountable.  Schedule  B.,  hereto  annexed,  contains  a 
statement  of  the  debts  mentioned  in  the  inventory,  which 
have  not  been  collected,  and  were  not  deemed  collectable ; 
and  also  a statement  of  the  personal  property  which  re- 
mains unsold,  and  the  reasons  therefor,  with  a true  state- 
ment of  all  property  lost,  the  appraised  value  thereof,  and 
the  cause  of  the  loss.  No  other  assets  than  those  stated 
in  the  inventory  have  come  to  my  possession  or  know- 
ledge. I have  stated  all  the  increase  and  decrease  in  the 
value  of  the  assets  of  the  deceased  in  schedules  A and  B, 
as  they  are  therein  charged  and  allowed.  Schedule  C 
exhibits  a true  statement  of  all  moneys  paid  by  me  for 
funeral  expenses,  and  the  necessary  expenses  incurred 
by  me  in  the  administration  of  said  estate.  Schedule  D 
contains  a true  statement  of  all  moneys  paid  to  creditors 


168 


THE  LAW  OF 


of  the  deceased,  and  the  names  of  the  creditors.  Sche- 
dule E exhibits  a true  statement  of  all  moneys  paid  to  the 
legatees,  widow  and  next  of  kin  of  the  deceased.  Sche- 
dule F contains  a true  and  full  list  of  all  the  names  of 
the  legatees,  widow  and  next  of  kin,  of  the  deceased,  and 
their  respective  places  of  residence,  and  their  relationship 
to  the  deceased,  and  the  names  of  those  who  are  minors, 
and  the  mmes  and  places  of  residence  of  the  several 
general  guardians  of  those  of  them  who  have  guardians. 

I charge  myself  with — 


Amount  of  inventory  . 

#5500  00 

Increase,  as  shown  by  exhibit  A 

1000  00 

#6500  00 

I credit  myself  by — 

Loss  on  sales,  as  per  schedule  B 

#100  00 

Debts  not  collected,  as  per  do. 

250  00 

Schedule  C 

325  00 

Schedule  D 

1500  00 

Schedule  E 

3500  00  5675  00 

Leaving  a balance  of  . . $825  00 

To  be  distributed  among  those  entitled  thereto,  subject 
to  my  commissions  and  the  expenses  of  this  accounting. 

A.  B. 
Executor . 


§ 307.  Application  for  authority  to  mortgage  lease 
or  sell  real  estate . 

County  of  Kings,  ) 

Surrogate’s  Court.  £ 

To  J.  C.  Smith,  Surrogate  of  Kings. 

The  petition  of  A.  B.,  administrator  of  the  personal 
estate  and  effects  of  C.  D.,  late  of  the  town  of  Flatbush, 
in  the  county  of  Kings,  deceased,  respectfully  shows 


EXECUTORS  AND  ADMINISTRATORS. 


169 


that  your  petitioner  was  appointed  such  administrator  by 
the  Surrogate  of  Kings  county,  on  the  1st  day  of  April, 
A.  D.  1850.  That  he  has  made  and  filed  an  inventory, 
according  to  law,  of  the  personal  estate  of  said  deceased, 
and  that  he  has  discovered  said  personal  estate  to  be  in- 
sufficient to  pay  the  debts  of  the  said  deceased.  Your 
petitioner  further  shows  that  the  amount  of  such  perso- 
nal property  which  has  come  to  his  hands  is  nineteen 
hundred  and  twenty-seven  dollars,  and  that  the  sources 
from  whence  and  the  manner  in  which  the  said  sum  has 
been  derived  appears  in  the  schedule  hereto  annexed, 
marked  A.  That  your  petitioner  has  out  of  the  same, 
in  due  course  of  administration,  seventeen  hundred  and 
ten  dollars  and  fifty  cents,  the  particulars  of  which  pay- 
ments also  appear  in  said  schedule  A,  leaving  in  the 
hands  of  your  petitioner  on  this  1st  day  of  December, 
1850,  the  sum  of  two  hundred  and  sixteen  dollars  and 
fifty  cents,  and  that  your  petitioner  has,  as  he  verily  be- 
lieves, proceeded  with  all  reasonable  diligence  to  con- 
vert the  personal  property  of  the  deceased  into  money, 
and  apply  the  same  in  the  payment  of  debts.  Your  pe- 
titioner further  shows  that  the  debts  still  outstanding 
against  the  said  estate,  as  near  as  he  can  ascertain,  ap- 
pear in  a schedule  hereto  annexed,  marked  B.  That  the 
debts  not  secured  by  mortgage,  or  otherwise  charged 
upon  the  real  estate  of  the  deceased,  hereinafter  described, 
and  which  remain  to  be  paid,  as  far  as  the  same  can  be 
ascertained  by  your  petitioner,  and  as  admitted  by  him, 
upon  due  evidence,  amount  to  three  thousand  five  hun- 
dred dollars,  exclusive  of  interest,  as  also  appears  by  said 
last  mentioned  schedule.  And  your  petitioner  further 
shows  that  the  claims  against  the  said  estate,  mentioned 
in  the  schedule  hereto  annexed,  marked  C,  have  been 
presented  to  your  petitioner,  but  have  not  been  admitted 
by  him,  because,  by  the  accounts  of  the  deceased,  the 
said  claims  do  not  appear  due  to  the  parties  presenting 
the  same.  Your  petitioner  further  shows  that  the  de- 
ceased died  seised  of  the  following  real  estate,  valued 

15* 


170 


THE  LAW  OF 


at  the  sums  respectively  affixed  to  each  lot  or  parcel,  and 
occupied  or  not,  as  stated,  that  is  to  say:  All  that  cer- 
tain house  and  lot  of  land,  situate,  lying  and  being  in  the 
tenth  ward  of  the  city  of  Brooklyn,  &c.,  valued  in  the 
judgment  of  your  petitioner  at  six  thousand  dollars,  and 
occupied  by  L.  M.  Also  all  those  cer  ain  lots  &c.,  of 
land,  situate,  &c.,  valued  in  the  judgment  of  your  peti- 
tioner at  two  thousand  dollars,  but  not  occupied  or  im- 
proved in  any  way.  And  your  petitioner  further  shows 
that  the  heirs  of  the  said  C.  D.,  deceased,  are  E.  D.,B.  D. 
and  E.  N.,  wife  of  A.  N.,  all  over  twenty-one  years  of 
age,  and  G.  D.  and  A.  D.,  minors,  over  fourteen  years  of 
age,  having  no  general  guardian,  and  L.  D.,  a minor  under 
fourteen  years  of  age,  also  having  no  general  guardian, 
all  residing  in  the  town  of  Flatbush  aforesaid,  his  only 
children. 

Your  petitioner  now  applies  for  authority  to  mortgage 
lease,  or  sell  so  much  of  the  real  estate  of  the  said  de- 
ceased as  shall  be  necessary  to  pay  his  debts. 

Dated,  &c.  A.  B. 

Add  an  affidavit  of  verification,  5 275. 


§ 308.  Notice  of  intention  to  apply  for  the  appoint- 
ment of  a special  Guardian . 

County  of  New-York — Surrogate’s  Court. 


In  the  matter  of  the  application  ofN 
A.  B.,  administrator  of  C.  D.,j 
deceased,  for  authority  to  mort- 
gage, lease  or  sell  the  real  estate 
of  the  said  deceased  to  pay  I 
debts. 


Please  to  take  notice,  that  I have  presented  an  appli- 
cation to  the  Surrogate  of  Kings  county,  for  authority 


EXECUTORS  AND  ADMINISTRATORS. 


171 


to  mortgage,  lease  or  sell  the  real  estate  of  C.  D.,  late 
of  ihe  city  of  Brooklyn,  deceased,  for  the  payment  of 
his  debts;  and  that  I intend  to  apply  to  the  Surrogate 
at  his  office,  in  the  said  city  of  Brooklyn,  on  the  tenth 
day  of  December,  instant,  at  ten  o’clock  in  the  fore- 
noon, for  the  appointment  of  a guardian  for  each  of 
you,  the  minor  heirs  of  the  said  deceased,  for  the  sole 
purpose  of  appearing  for  you,  and  taking  care  of  your 
interests  in  these  proceedings  on  the  said  application. 

Dated,  &c.  Yours,  &c., 

A.  B.,  Admin'r.  of  C.  D. 

To  A.  D.,  1 

C.  D.,  > the  minor  heirs  of  C.  D.,  deceased. 

E.  D.,  ) 


§ 309.  Bond  on  an  Order  to  Mortgage. 

Know  all  men  by  these  presents,  lhat  we,  A.  B.,  ad- 
ministrator of  C.  D.,  deceased,  and  J.  R.  and  N.  P.,  all 
of  the  city  of  Brooklyn,  are  held  and  firmly  bound  to 

the  people  of  the  state  of  New-York  in  the  sum  of 

dollars,  to  be  paid  to  the  said  people,  to  which  payment 
well  and  truly  to  be  made  we  bind  ourselves,  our  and 
each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals.  Dated  this  15th  day  of  December,  A.  D.  1850. 

Whereas  the  above  bounded  A.  B.,  administrator  of 
C.  D.,  deceased,  has  lately  made  application  to  the  Sur- 
rogate of  the  county  of  Kings  for  authority  to  mort- 
gage, lease  or  sell  so  much  of  the  real  estate  of  the  said 
deceased,  as  shall  be  necessary  to  pay  his  debts  ; and 
whereas  such  proceedings  have  been  thereupon  had, 
that  the  said  Surrogate  is  about  to  direct  a mortgage  of 
the  real  estate  to  be  made,  for  the  purpose  of  raising 
money  for  the  payment  of  the  said  debts. 

Now,  the  condition  of  this  obligation  is  such,  that  if 
the  said  A.  B.  shall  faithfully  apply  the  money  arising 


172 


THE  LAW  OF 


from  the  said  mortgage  to  the  payment  of  the  debts  of 
the  said  deceased,  to  be  established  before  said  Surro- 
gate, on  granting  the  order  for  such  mortgage,  and  shall 
account  for  such  money  whenever  required  by  the  said 
Surrogate,  or  by  any  court  of  competent  authority,  then 
this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Sealed  and  delivered  ) A.  B.  [l.  s.‘ 

in  the  presence  of  $ J.  R.  [l.  s. 

n.  p.  [l.  s.; 


§ 310.  Application  for  the  removal  of  an  Executor , 
or  to  compel  him  to  give  security . 

County  of  Kings,  > 

Surrogate’s  Court.  \ 

To  Jesse  C.  Smith,  Surrogate  of  Kings  County : 

The  petition  of  A.  B.,  of  the  city  of  Brooklyn,  re- 
spectfully shows,  that  he  is  one  of  the  legatees  under 
the  last  will  and  testament  of  N.  B.,  late  of  the  said 
city,  deceased,  and  interested  in  his  estate  ; that  the  said 
last  will  and  testament  was  proved  before  the  Surrogate 
of  the  county  of  Kings,  and  recorded  by  him  on  the  1st 
day  of  May,  1848 ; and  letters  testamentary  were  there- 
upon issued  by  said  Surrogate  to  A.  B.,  sole  executor  in 
said  will  named. 

Your  petitioner  further  shows,  that  according  to  the 
best  of  his  information  and  belief,  the  circumstances  of 
the  said  C.  B.  are  so  precarious  as  not  to  afford  ade- 
quate security  for  his  due  administration  of  the  estate 
of  the  said  testator ; that  the  assets  of  his  estate  which 
came  to  the  hands  of  the  said  executor,  as  appears  by 
the  inventory  filed  by  him,  exceed  ten  thousand  dollars  ; 
that  the  said  C.  B.  has  failed  in  business,  and  is  re- 
puted to  be  largely  insolvent,  and  your  petitioner  has 
reason  to  believe,  and  does  believe  that  the  said  assets 


EXECUTORS  AND  ADMINISTRATORS. 


m 


or  a portion  thereof  will  be  lost  or  misapplied  by  the 
said  C.  B.  Your  petitioner  therefore  prays  that  the  said 
executor  may  be  required  to  appear  and  show  cause  why 
he  should  not  be  superseded  in  his  said  office,  and  that 
he  may  be  required  from  further  acting  in  the  premises 
until  the  matter  in  controversy  shall  be  disposed  of,  and 
that  such  further  or  other  proceedings  may  be  thereupon 
had  as  shall  tend  to  the  security  and  due  administration 
of  the  estate  of  the  said  N.  B.,  deceased. 

Dated,  &c.  A.  B. 

Add  affidavit  of  verification,  § 275. 


§311.  Application  to  compel  an  Administrator , 
whose  Sureties  have  removed  from  the  State , to 
give  farther  Security . 

County  of  New-York,  > 

Surrogate’s  Court.  \ 

To  A.  W.  Bradford,  Esq.,  Surrogate  of  the  County  of 
New-York. 

The  petition  of  G.  M.  respectfully  showeth,  that  he 
is  one  of  the  children  of  B.  M.,  late  of  the  city  of  New- 
York,  deceased,  intestate  and  interested  in  the  estate  of 
the  said  decea-ed ; that  letters  of  administration  upon  the 
estate  of  the  deceased  were  granted  by  the  Surrogate 
of  the  county  of  New-York  to  A.  L , of  said  city,  on 
the  first  day  of  May,  1849.  Your  petitioner  further 
shows,  that  C.  R.,  lately  a resident  of  the  city  of  New- 
York,  is  one  of  the  sureties  of  the  said  A.  L.  upon  his 
administration  bond,  and  has,  as  your  petitioner  is  in- 
formed and  believes,  recently  removed  from  the  state  of 
New-York,  and  gone  to  and  become  a resident  of  Chi- 
cago, in  the  state  of  Illinois;  and  that  E.  N.,  of  the  city 
of  New-York,  is  the  only  other  security  upon  the  said 
administrator’s  bond. 

Your  petitioner  therefore  applies  for  such  relief  as 


174 


THE  LAW  OF 


may  be  proper  under  the  statute  in  such  case  made  and 
provided. 

Dated,  &c.  G.  M. 

Add  affidavit  of  verification,  § 275. 


§312.  Application  of  a surety  to  be  released  from 
further  responsibility. 

County  of  New-York,  ) 

Surrogate’s  Court,  j 

To  C.  V.  M.,  Surrogate  of  the  County  of  New-York  : 

The  application  of  E.  N.,  of  the  county  of  New-York, 
respectfully  showeth,  that  he  is  one  of  the  sureties  of 
A.  L.,  as  the  administrator  of  all  and  singular  the  goods, 
chattels  and  credits,  of  B.  M.,  late  of  the  city  of  New- 
York,  deceased,  and  that  he  desires  to  be  released  from 
responsibility,  on  account  of  the  future  acts  or  defaults 
of  the  said  administrator.  He  therefore  applies  to  the 
Surrogate  for  relief,  pursuant  to  the  statute  in  such 
case  made  and  provided. 

Dated,  &c.  E.  N. 


§ 313.  Proceedings  on  appointment  of  a guardian 
of  a minor  of  the  age  of  fourteen  years. 

Petition. 

To  C.  Y.  M.,  Surrogate  of  the  County  of  New-York  : 
The  petition  of  A.  M.  C.,  of  the  city  of  New-York, 
respectfully  showeth,  that  your  petitioner  is  a resident 
of  the  county  of  New-York,  and  is  a minor  over  four- 
teen years  of  age,  and  was  seventeen  years  of  age  on 
the  sixth  day  of  May  last  past.  That  your  petitioner  is 
-entitled  to  certain  property  and  estate,  and  that  to  pro- 


EXECUTORS  AND  ADMINISTRATORS. 


175 


tect  and  preserve  the  legal  rights  of  your  petitioner,  it 
is  necessary  that  some  proper  person  should  be  duly 
appointed  the  guardian  of  his  person  and  estates  during 
his  minority.  Your  petitioner  therefore  nominates,  sub- 
ject to  the  approbation  of  the  Surrogate,  B.  D.,  of  the 
city  of  New-York,  merchant,  to  be  such  guardian,  and 
prays  his  appointment  accordingly,  pursuant  to  the 
statute  in  such  case  made  and  provided.  And  your  pe- 
titioner will  ever  pray. 

Dated  New-York.  the  first  day  of  October,  A.D.  1846. 

A.  M.  D. 


Consent  to  be  Annexed . 

I,  B.  D.,  of  the  city  of  New-York,  merchant,  do  hereby 
consent  to  be  appointed  the  guardian  of  the  person  and 
estate  of  the  above  named  minor  during  his  minority. 
Dated  this  first  day  of  October,  A.  D.  1846. 

B.  D. 


Affidavit  as  to  property  annexed . 

County  of  New - York , ss. : — J.  P.,  of  the  city  of  New- 
York,  being  duly  sworn,  doth  depose  and  say,  that  he  is 
acquainted  with  the  property  and  estate  of  the  above 
named  minor,  and  that  the  same  consists  of  real  and  per- 
sonal estate  ; and  that  the  personal  estate  of  said  minor 
does  not  exceed  the  sum  of  two  thousand  dollars,  or 
thereabouts ; and  that  the  annual  rents  and  profits  of  the 
real  estate  of  said  minor,  does  not  exceed  the  sum  of 
three  hundred  dollars,  or  thereabouts. 

J.  P. 

Sworn,  this  first  day  of  October,  > 

1846,  before  me,  $ 

C.  V.  M.,  Surrogate . 


176 


THE  LAW  OF 


§314.  Guardian’s  Bond . 

Know  all  men  by  these  presents,  that  we,  B.  D.,  of 
the  city  of  New-York,  merchant,  and  L.  R.,  of  the  same 
city,  physician,  are  held  and  firmly  bound  unto  A.  M.  C., 
of  the  city  of  New-York,  a minor  over  fourteen  years  of 
age.  in  the  sum  of  six  thousand  four  hundred  dollars, 
lawful  money  of  the  United  States,  to  be  paid  to  the 
said  minor,  his  executors,  administrators  or  assigns;  to 
which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors  and  admin- 
istrators, jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals.  Dated  the  first  day  of  Oct.,  one 
thousand  eight  hundred  and  forty-six. 

The  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  B.  D.  shall  and  will  faithfully,  in  all 
things,  discharge  the  duty  of  a guardian  to  the  said 
minor,  according  to  law,  and  render  a true  and  just  ac- 
count t f all  moneys  and  property  received  by  him,  and 
of  the  application  thereof,  and  of  his  guardianship  in  all 
respects,  to  any  court  having  cognizance  thereof,  when 
thereunto  required,  then  this  obligation  to  be  void,  else 
to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the  presence  of 

B.  D.  [seal.] 

L.  R.  [seal.] 


Affidavit  of  justification  of  surety  on  bond. 

City  and  County  of  New - York , ss. : — L.  R.,  the  within 
named  surety,  being  duly  sworn,  doth  depose  and  say, 
that  he  resides  at  No.  street,  in  said  city,  and 

is  worth  the  sum  of  six  thousand  four  hundred  dollars, 
over  and  above  all  his  just  debts,  liabilities  and  respon- 
sibilities. 

Sworn,  this  first  day  of  > 

Oct.,  1846,  before  me,  \ 

C.  V.  M.,  Surrogate. 


EXECUTORS  AND  ADMINISTRATORS. 


m 


§ 235.  Letters  of  Guardianship. 

The  people  of  the  State  of  New-York,  to  B.  D.,  of  the 
city  of  New-York,  send  greeting: 

Whereas  an  application,  in  due  form  of  law,  has  been 
made  to  our  Surrogate  of  the  county  of  New-York,  to 
have  you,  the  said  B.  D.,  appointed  the  guardian  of  the 
person  and  estates  of  A.  M.  C.,  a minor,  residing  in  the 
city  of  New-York,  of  the  age  of  fourteen  years:  And 

whereas  the  said  B.  D.  has  agreed  and  consented  to  be- 
come such  guardian,  and  has  duly  executed  and  delivered 
a bond,  pursuant  to  law,  for  the  faithful  discharge  of  his 
duty  as  such  guardian,  and  we  being  satisfied  of  the 
sufficiency  of  said  bond,  and  that  said  B.  D.  is  a good  and 
reputable  person,  and  is  in  every  respect  competent  to 
have  the  custody  of  the  person  and  estate  of  said  minor, 
do  by  these  presents  allow,  constitute  and  appoint  you, 
the  said  B.  X).,  the  general  guardian  of  the  person  and 
estate  of  said  minor  during  his  minority,  hereby  requiring 
you,  the  said  guardian,  to  safely  keep  the  real  and  per- 
sonal estate  of  said  minor,  which  shall  hereafter  come  to 
your  custody,  and  not  suffer  any  waste,  sale  or  destruc- 
tion of  the  same,  but  keep  up  and  sustain  his  lands,  ten- 
ements and  hereditaments,  by  and  with  the  rents,  issues 
and  profits  thereof,  or  with  such  other  moneys  belonging 
to  him  as  shall  come  to  your  possession,  and  to  deliver 
the  same  to  him  when  he  becomes  of  full  age,  or  to  such 
other  guardian  as  may  be  hereafter  appointed,  in  as  good 
order  and  condition  as  you  receive  the  same ; and  also 
to  render  a just  and  true  account  of  all  moneys  and  pro- 
perty secured  by  you,  and  the  application  thereof,  and 
of  your  guardianship  in  all  respects,  to  any  court  having 
cognizance  thereof,  when  thereunto  required. 

In  testimony  whereof,  we  have  caused  the  seal  of 
our  office  of  our  said  Surrogate  to  be  hereunto 
affixed.  Witness,  C.  M.  V.,  Surrogate  of  said 
[l.  s.]  county,  at  the  city  of  New-York,  the  first  day 
of  May,  in  the  year  of  our  Lord  one  thousand 
16 


178 


THE  LAW  OF 


eight  hundred  and  forty-nine,  and  of  our  inde- 
pendence the  seventy-fourth. 

C.  M.  V.  Surrogate. 

Annexed  to  the  Letters  is  the  following  : 

Extract  from  an  act  of  the  legislature  of  New-York, 
concerning  executors,  administrators,  guardians,  wards, 
&c.,  passed  May,  16th,  1837. 

§ “Every  general  guardian  appointed  by  the  Surro- 
gate, shall,  annually  after  such  appointment,  so  long  as 
any  part  of  the  estate,  or  the  income  or  proceeds  thereof, 
remain  in  his  hands  or  under  his  control,  file  in  the  office 
of  the  Surrogate  appointing  him,  an  inventory  and  ac- 
count under  oath,  of  his  guardianship,  and  of  the  amount 
of  property  received  by  him,  and  remaining  in  his  hands, 
or  invested  by  him,  and  the  manner  and  nature  of  such 
investment,  and  his  receipts  and  expenditures  in  form  of 
debtor  and  creditor.” 


§316.  Proceedings  for  the  appointment  of  a guardian 
of  a,  minor  under  the  age  of  fourteen. 

Petition. 

To  the  Surrogate  of  the  county  of  New-York. 

The  petition  of  I.  F.,  of  the  city  of  New-York,  mer- 
chant, respectfully  showeth,  that  your  petitioner  is  a 
paternal  uncle  of  C.  F.,  a minor;  that  said  minor  is  a 
resident  of  the  county  of  New-York,  and  is  under  four- 
teen years  of  age : That  said  C.  F.  was  six  years  of  age 
on  the  tenth  day  of  July  last  past:  That  the  only  rela- 
tives of  said  minor  residing  in  the  county  of  New-York, 
are  W.  G.,  his  maternal  grandfather,  A.  G.  and  H.  G., 
his  maternal  uncles, and  D.  F.,  R.  F.,  and  your  petitioner, 
his  paternal  uncles : That  said  minor  is  entitled  to  per- 
sonal property  to  the  value  of  about  one  thousand  dol- 
lars, as  your  petitioner  is  informed  and  verily  believes, 


EXECUTORS  AND  ADMINISTRATORS. 


179 


and  that  he  is  also  seised  of  certain  real  estate,  the  an- 
nual rents  and  profits  whereof  do  not  exceed  the  sum 
of  two  hundred  dollars ; And  that  to  protect  and  pre- 
serve the  legal  rights  of  said  minor,  it  is  necessary  that 
some  proper  person  should  be  duly  appointed  the  guar- 
dian of  his  person  and  estate. 

Your  petitioner,  therefore  prays,  that  you  will  appoint 
him,  your  petitioner,  the  guardian  of  the  person  and  es- 
tate of  said  minor,  until  he  shall  arrive  at  the  age  of 
fourteen  years,  and  until  another  guardian  shall  be  ap- 
pointed. And  your  petitioner  will  ever  pray. 

Dated  this  first  day  of  May,  1849.  I.  F. 

City  and  County  of  New- York,  ss. : — I.  F.,  of  the  city 
of  New-York,  the  above  petitioner,  being  duly  sworn, 
deposes  and  says,  that  the  matters  set  forth  in  the  fore- 
going petition  are  true,  as  he  is  informed  and  verily 
believes.  I.  F. 

Sworn  before  me,  this  first  ) 
day  of  May,  1849.  $ 


Consent  to  be  annexed . 

I,  I.  F.,  of  the  city  of  New-York,  merchant,  do  hereby 
consent  to  become  the  guardian  of  the  above  mentioned 
minor,  pursuant  to  the  prayer  of  the  foregoing  petition. 

I.  F. 


INDEX. 


***  The  figures  refer  to  the  numbers  of  the  Section  a. 

Abatement,  oflegacies,  178. 

general  legacy  abates  before  specific,  185. 

Accounting  of  executor  or  administrator,  169,  204. 
when  ordered,  205. 
proceedings  upon,  213. 
form  of,  214. 

Actions,  by  or  against  executors,  126. 
by  legatee,  166. 
by  creditor,  165. 

Administrator,  by  whom  appointed,  6. 

who  entitled  to  be,  11. 
order  of  preference,  12. 
when  widow  entitled,  13. 

“ husband,  15. 

6(  foreign  administrator,  16. 

“ guardian  of  minor,  17. 

ic  persons  not  otherwise  entitled,  18. 
who  are  disqualified,.  19. 
at  what  time  to  be  appointed,  20. 
to  give  security,  22. 
when  to  give  further  security,  23. 
may  be  deposed  by  surrogate,  33. 
if  appointed  under  false  representation,  38. 
or  will  subsequently  found,  36. 
or  disability  removed,  37. 
or  if  being  a woman,  she  marries,  38. 
with  a will  annexed,  42. 

16* 


182 


INDEX. 


Administrators,  when  legatee  appointed,  103. 

duty  of,  in  collecting  assets,  124. 
not  to  use  force  in  taking  possession,  125. 
For  other  matters  see  Executor. 
Advancement  of  children  by  the  father,  198. 

Alien  not  entitled  to  be  executor,  52. 

Appeal  from  order  revoking  probate,  93. 

Appraisers,  how  appointed,  113. 

notice  of  appraisement,  114. 
proceedings  of,  116. 

Assets,  what  shall  be  deemed  to  be,  105. 

how  marshalled,  and  distributed,  159,  188. 
difference  between  legal  and  equitable,  186. 
when  to  be  apportioned  among  creditors,  165. 
Attachment  to  enforce  Surrogate’s  orders,  209. 

Auditors  to  examine  accounts,  222. 

Bond  of  administrator,  22. 

when  given  by  executor,  98. 
when  to  be  prosecuted,  171. 

Children,  when  entitled  to  administer,  11. 

Claims,  how  to  be  presented,  140. 

when  to  be  prosecuted,  143. 

“ barred,  144. 

16  recovered  of  next-of-kin,  147. 

Collectors  of  effects  of  deceased,  34. 

Commission  to  take  proof  of  foreign  will,  85. 

Costs,  how  awarded  in  contested  cases,  96. 
when  in  suits  at  law,  146. 
on  accounting,  170. 

County  treasurer,  when  to  administer,  11. 

Court  of  probates,  when  abolished,  6. 

Creditors  may  require  executor  to  qualify  or  renounce,  59. 
when  entitled  to  administer,  11. 
may  apply  for  payment,  165. 
how  collection  enforced  by,  171. 
may  compel  settlement  of  accounts,  207. 
may  apply  for  an  execution,  160. 
when  to  apply  for  sale  of  real  estate,  236. 


INDEX. 


183 


Debts  due  deceased  to  be  inventoried,  118. 
order  of  payment  of,  148. 
not  yet  due,  how  to  be  paid,  153. 
when  payment  may  be  ordered,  358. 
proceedings  for  payment,  168. 

• when  to  be  paid  proportionately,  165. 
executor  cannot  retain  his  own,  156. 

Devisee  may  apply  to  have  will  proved,  61. 

devise  to  void,  if  a witness  to  the  will,  83. 

Distribution  of  assets,  when  to  be  made,  194. 
how  enforced,  195. 
right  of  widow  and  children  on,  197. 
in  case  of  advancement,  198,  200. 
rights  of  husband  and  wife  on,  201. 

u personal  representatives,  202. 
law  of  domicil  of  deceased  to  prevail,  203. 

Execution,  only  upon  Surrogates  order,  160. 

how  order  for  to  be  obtained,  161. 

Executor,  how  constituted,  45. 

when  in  his  own  wrong,  47. 
no  executor  of  an  executor,  48. 
when  by  implication,  49,  51. 
who  incompetent  to  serve  as,  52. 
can  only  act  after  proving  the  will,  57. 
liable  for  funeral  expenses  before  probate,  58. 
must  renounce  or  qualify,  59. 
when  to  apply  for  probate,  61. 
to  whom  application  to  be  made,  62. 
in  what  manner  to  apply,  64. 
what  facts  to  be  proved  by,  66. 
powers  cease  on  revocation  of  probate,  95. 
when  letters  to  be  granted  to,  97. 
may  be  required  to  give  security,  98,  104. 
if  one  of  two  displaced  other  may  act,  102. 
when  to  return  an  inventory,  120. 
his  power  to  dispose  of  assets,  130. 
general  authority  over  personal  estate,  133. 
may  mortgage  as  well  as  sell,  134. 
if  collusion  with  a purchaser  creditors  may  follow 
the  assets,  135. 


184 


INDEX. 


Executor,  how  sale  to  be  made,  136. 

to  advertise  for  claims,  139. 

may  require  proof  of  claims,  140. 

may  refer  claims,  141. 

order  in  which  heirs  to  pay  debts,  148. 

when  to  pay  rent  accruing  on  leases,  154. 

not  to  retain  for  his  own  debt,  156. 

not  bound  to  plead  statute  of  limitations,  157. 

when  to  pay  debts,  158. 

no  execution  against,  unless  by  order  of  the  Sur- 
rogate, 160. 

such  order  conclusive  as  to  assets,  162. 
only  liable  to  pay  on  written  promise,  164. 
when  to  apportion  assets  among  creditors,  165. 
not  to  pay  legacies  within  a year,  unless  a bond 
is  given,  173. 

may  voluntarily  render  an  account,  204. 

when  compelled  to  account,  205. 

when  probate  revoked  for  not  accounting,  209. 

to  furnish  vouchers  for  his  account,  214. 

when  allowed  for  items  under  20  dollars,  215. 

as  to  assets  lost  without  his  fault,  216. 

when  chargeable  with  interest,  218. 

when  responsible  for  investments,  219. 

legal  effect  of  a settlement  of  his  accounts,  223. 

to  retain  certain  amounts  on  settlement,  226. 

allowed  commissions  and  expenses,  230. 

when  allowed  interest,  233. 

when  for  clerk  hire,  234. 

when  authorized  to  sell  real  estate,  236. 

Father,  when  entitled  to  administer,  11. 

when  to  receive  legacies,  183. 

First  Judge  of  county  when  to  act  as  Surrogate,  7. 

Funeral  expenses  to  be  paid  before  probate,  58. 

Guardians,  testamentary  appointed  by  father,  249. 

rights  and  duties  of  such  a guardian,  250. 
when  special  guardians  appointed,  252. 
who  to  apply  for,  253. 
who  may  be  appointed,  254. 
powers  and  duties  of,  263. 


INDEX. 


185 


Guardians,  when  personally  liable  lo  ward,  265. 

when  required  to  increase  his  security,  257. 

to  file  inventory  and  annual  account,  261. 

when  entitled  to  administration,  266. 

when  to  receive  legacy,  266. 

how  cited  to  render  an  account,  267. 

when  he  may  be  removed,  269. 

how  to  resign  his  trust,  270. 

compensation  of,  273. 

when  may  settle  with  his  ward,  273. 

Heir  at  law,  to  be  cited  on  proving  will,  66. 

Husband  may  administer  wife’s  estate,  15. 

liable  for  her  debts  to  the  extent  of  assets,  15. 

Infant  incompetent  to  serve  as  executor,  52. 

but  may  act  when  he  comes  of  age,  66. 

Interest  on  specific  legacies,  192. 

on  general  legacies,  193. 

when  executor  to  be  charged  with,  218. 

when  he  is  to  be  allowed,  233. 

Inventory,  when  to  be  made,  105. 

what  property  to  be  embraced  in,  106,  112. 
what  inventoried  but  not  appraised,  108. 
notice  before  making,  114. 
how  returned  to  Surrogate,  117. 
effect  and  object  of,  118. 
how  return  of  compelled,  120. 
revocation  of  letters  for  not  returning,  122. 
of  property  subsequently  discovered,  123. 

Judgments,  how  and  when  to  be  paid,  151. 

Leases,  when  accruing  rents  to  be  paid,  154. 

Legacy,  to  a subscribing  witness  to  will,  void,  83. 
when  to  be  paid,  172. 
when  paid  rateabiy,  185. 
when  to  be  refunded,  174,  187. 
specific  or  general,  177,  180. 
lapsed  or  vested,  181. 
refunding  bond  on  payment  of,  173. 
to  whom  paid,  if  legatee  a minor,  183. 
assent  to  by  an  executor  necessary,  187. 
interest  payable  on,  193. 


186 


INDEX. 


Legatee,  when  entitled  to  administer,  42. 

Letters  of  administration,  who  to  grant,  G. 
who  entitled  to,  12. 
proceedings  on  granting,  22. 
with  the  will  annexed,  42. 
special,  when  granted,  43. 
when  to  be  revoked,  36 — 38. 
testamentary,  when  to  issue,  97. 

Married  women  incompetent  to  act  as  executors,  53. 

husband  may  administer  in  her  right,  15. 
letters  testamentary  to,  may  be  revoked,  54. 
legacy  may  be  paid  to  her,  201. 

Marshalling  assets,  how  performed,  159. 

Mortgage  debt,  how  to  be  paid,  188 — 191. 

Minor,  when  legacy  paid  to  father,  183. 

guardian  to  be  appointed  for,  248. 
how  represented  on  sale  of  real  estale,  249. 
special  guardian  for  on  proving  will,  252. 
entitled  to  administer  by  guardian,  266. 

Notice  to  creditors,  to  exhibit  claims,  139. 

Orders  of  Surrogate,  how  enforced,  209. 

Partnership  interest  to  be  inventoried,  118. 

Preferences  in  payment  of  debts,  152. 

Probate,  what  evidence  on  making,  82. 
when  to  be  revoked,  90. 

Public  Administrator,  7. 

Real  Estate,  when  to  be  sold,  236. 

proceedings  to  obtain  order  for,  238. 
when  creditor  may  apply  for,  237. 
when  mortgage  will  be  ordered,  242. 
how  proceeds  of  sale  disposed  of,  246. 
effect  of  a sale  of,  247. 

Referees,  how  appointed,  141. 

proceedings  by,  142. 

RenuncIation  of  right  to  administer,  8 — 13. 
by  an  executor,  59. 

Residuary  legatee,  when  entitled  to  administer,  42. 


INDEX. 


187 


Revocation  of  probate,  90. 

of  letters  testamentary,  101. 
of  administration,  122. 

Sale  of  personal  effects,  when  authorized,  130. 

how  to  be  made,  136. 

Stocks,  when  to  be  transferred  to  executor,  129. 

Sureties,  of  administrator,  22. 

when  to  be  renewed,  23. 

when  relieved  from  further  liability,  27. 

Surrogate,  origin  and  history  of  the  office,  4,  5. 
jurisdiction  of,  6. 
when  county  judge  to  act,  7. 
who  to  take  proof  of  wills,  62. 
orders  of,  how  enforced,  209. 

Taxes,  when  to  be  paid,  148. 

United  States  entitled  to  priority  of  payment,  149. 

Widow,  entitled  to  administer,  13. 

what  personal  property  entitled  to,  108. 

Witnesses,  what,  on  proving  will,  70. 

how  compelled  to  testify,  74. 
when  infirm,  how  examined,  72. 
in  case  they  are  interested  in  legacy,  83. 
to  state  their  place  of  residence,  87. 

Will,  proceedings  on  proving,  66. 
citation,  how  reserved,  68. 
proof  required  from  witnesses,  71. 
proof  in  case  witnesses  are  dead,  78. 
when  Surrogate  to  record,  82. 
when  already  proved  in  another  state,  84. 
what  facts  necessary  to  be  proved,  86. 
legal  effect  of  proof  of,  88. 
how  probate  may  be  contested,  89 — 93. 


THE  END. 


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